Pollack v. Slack

Mr. Justice Craig delivered the opinion of the Court: John B. Slack sued out an attachment against Charles P. Huntington, returnable to the September term, 1875, of the circuit court of Washington county. On the 20th day of September, 1875, the writ of attachment was levied on a tract of land in Washington county. At the September term of court no trial was had, but the cause was continued. On the 2d day of December, Huntington conveyed the land to Alexander Warner, and the deed was recorded on the 7th day of the following January. Afterwards, Alexander Warner and William Ai Pollack each commenced an action of assumpsit against Huntington, and at the April term of court, 1876, judgments were rendered in their favor, and at the same term the attaching creditor, Slack, obtained a judgment in the attachment suit. On the 11th day of July, 1876, executions were issued on all three of the judgments and delivered to the sheriff, who advertised and sold the land on the execution in favor of Slack. The sheriff reported the money to the court, and an order was entered requiring him to pay, first, John B. Slack the amount of his judgment, and the surplus, if any, to Alexander Warner on his judgment. This decision is assigned for error. We see no ground upon which the decision can be sustained without disregarding a plain provision of the statute, which declares all judgments in attachments against the same defendant returnable at the same term of court, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata, according to the .amounts of the several judgments, in the proceeds of the property either in the hands of a garnishee or otherwise. Bev. Stat. 1874, sec. 37, p. 158. This section of the statute seems to provide for a division of the proceeds of the property attached in two classes of cases: First, where two or more creditors commence by attachment, and all returnable to the same term, they are protected by the statute whether they all obtain judgments at the same or at different terms of court. Second, all judgments in suits by summons, capias or attachment, rendered at the term when the attachment is returnable, or rendered at the term when judgment is obtained in the action of attachment regardless of the time when the actions were commenced. The judgments obtained by Warner and Pollack seem to fall in this second class. Their suits were not commenced until the return day of the attachment had passed, but they each obtained judgment at the same term of court that the attaching creditor obtained his judgment, and they were, under the statute, clearly entitled to share in the proceeds of the * property attached. The judgment of the circuit court will be reversed and the cause remanded. Judgment reversed.