Raspillier v. Brownson

Bullard J., delivered the opinion of the court. The appellant, C. Raspillier, having intervened in a suit commenced by attachment by Miles, against Brent, in which the present appellee was attorney and security on the attachment bond, and judgment having been rendered in his favor, for the amount claimed by him except interest, took a rule on the appellee to show cause why judgment should not be entered against him, for the amount of damages, sustained by him, as the real party in interest. To this rule the appellee showed for cause, that he was not a party to the suit, and that if he was liable for damages, as surety on the bond, they could be recovered only by regular suit. The rule Avas discharged, and the complainant appealed. We are of opinion that the court did not err in discharging the rule. Besides the obvious objection that Raspillier was not a party to the bond, and that there existed no privity of contract between him and the appellee, it appears that final [233] judgment had already been rendered in the case, as to the principal demand, and it was too late to engraft upon it any new incidental question. Nothing remained to be done but to execute the judgment rendered on the appeal. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.