Opinion by

Conceding that the judgment enforcing the rule against Thomas was final and beyond the control of the court at a subsequent term, as between the plaintiff and Thomas and Scott, yet we are of the opinion that, as the fund in litigation had not been, paid over when the appellant, Wallace, offered to file his petition, and asked thereby to be made a party, claiming the debt on Thomas by assignment prior in date to the levy of the order of attachment, he was entitled to be so admitted as a party by the express provisions of Sec. 257, Civi'l Code of Practice, there being* nothing in the judgment against Thomas to conclude him from, litigating the right to collect the debt as between him and Smith; and the court, therefore, erred in rejecting the petition of Wallace to be made a party.

Wherefore the judgment as to Wallace is reversed and the cause remanded for further proceedings not inconsitent with this opinion.