Olney v. Shepherd

Blackford, J. In September, 1839, Thomas Bishop having filed in the clerk’s office of the Circuit Court of Knox [147] county, an affidavit that Benjamin Olney was indebted to him in a certain sum, and was a non-resident, &c., and having filed bond, &c., took out there two writs of foreign attachment against the lands, &c., of said Olney; one of which writs'was directed to the sheriff of Knox county, and the other to the sheriff of Posey county: the former writ was returned levied on certain land, &c.; the return to the latter was, that it was not received until after the return-day. In March, 1840, another writ was issued in the case directed to the sheriff of Knox county, which was returned by the sheriff of Posey county levied on certain land, Sec. In August, 1840, Shepherd filed an affidavit that Olney was indebted to him, &c.: he also filed a bond, &c. At the September term, 1840, it was ordered “ that the sheriff’s return on the writ directed to the sheriff of Knox county be set aside,” and that an alias issue. In December, 1840, an alias attachment was issued directed to the sheriff of Knox county, which was returned levied on certain land. In September, 1841, Buntin filed in the case an affidavit of a debt, &c., and a bond, &c. At the March term, 1842, publication of the pendency of the attachment was proved. In October, 1842, an affidavit of a debt, Sec., a bond, &c., were filed in the case by the executors of Harper. At the September term, 1842 (5th October), the plaintiff by his attorney, and also Buntin, Shepherd, and the executors of Harper, by their attorneys, appeared, and on motion the attachment as to Bishop was dismissed at his costs. Afterwards, at the last-named term, the defendant having been called and his default entered, damages were assessed against him in favour of Buntin, Shepherd, and Harper's executors, and judgments were rendered accordingly. These judgments in favour of Buntin, Shepherd, and Harper's executors, must be reversed. The return of the sheriff of Posey county is void, the writ under which he acted not being directed to him. In the writ under which the land in Knox county was attached, there was no plaintiff but Bishop, and when the writ was dismissed as to him, the suit was at an end. It could not be dismissed as to the only plaintiff, and remain pending as to any other persons. If the Court [148] committed an error in dismissing the attachment, the parties aggrieved may resort to a writ of error. J. Law and O. H. Smith, for the plaintiff. S. Judah, for the defendants. Per Curiam. The judgments are reversed with costs. Cause remanded, &c.