Pfiefer v. Hartman

Cooper, J., delivered the opinion of the court. By the verdict of the jury in favor of the defendant on the plea in abatement, the attachment was discharged subject to the right of the plaintiff to retain his lien by perfecting an appeal within five days after the expiration of the term of the court. Code of 1880, sects. 2434 and 2435. Sects. 2324 and 2325 of the Code provide how appeals may be taken, and in all cases where bonds are given by the appel [509] lant it is required that they be signed by two sureties, freeholders in the state. The appellant gave bond within the prescribed time, but it was executed by only one surety, and the appeal was not, therefore, perfected. It is true that the defendant did not object to the bond, but appeared in this court, confessed error and consented that a judgment might be rendered here condemning the property attached to sale, which was done, but .this did not have the effect of restoring the lien of the attachment on the property replevied by the claimant. As to him, the proceedings in that appeal were res inter alios acta. 'By the failure of the plaintiff to perfect his appeal within the time in which it must have ■ been perfected, to enable him to retain the lien on the property attached, the claimant had been freed from all obligation to further prosecute his claim ; he had no connection with the-suit except as claimant to the property attached, and when the property was discharged so also was he. The right to an attachment, and the proceedings to enforce the right, are wholly regulated by the statute, and only by compliance with its terms can the lien be acquired or retained. The judgment is affirmed.