The plaintiff, having obtained a judgment against Gennison, the latter appealed, and gave a bond for a suspensive appeal, with E. M. Ivens as his surety.

The Supreme Court affirmed tho judgment of the district court.

• On the thirtieth of June, 1866, property of the defendant was sold, under execution issued in the above entitled cause, for enough to satisfy the judgment. On the twenty-third of July, Mrs. Emanuel, the purchaser, instituted proceedings against Johnson, the judgment creditor, Gennison, the debtor, and the sheriff, to compel the sheriff to return the purchase price, on tho ground that the property described in the advertisement and act of sale did not belong to defendant.

There appears to have been a misdescription of the property seized. There was judgment in favor of Mrs. Emanuel, and the money was refunded to her. No appeal has been taken from that judgment. It is contended now that the delendant, Gennison, was not notified, and wuis not a party to that suit.

The sheriff’s return shows that “a copy of the within rule was served on John H. Gennison, at his domicile, No. 64 Villere street, by leaving the same in the hands of Miss Francis Gennison, a free person1, apparently over the age of fourteen years, living and residing at the said domicile, and whose name and other facts I learned by interrogating her, the said John H. Gennison being absent from home at the time of said service.”

On the tenth of April, 1867, an alias writ of fieri fiadas was issued upon the judgment rendered in favor of Johnson against Gennison— property was seized and sold. There heiDg no other property of the defendant to seize, the writ was returned unsatisfied. On the fifth of August, 1867, the plaintiff took a rule upon Edmund M. Ivens, the surety on the defendant’s appeal bond, to show cause why he should not be condemned to pay the balance of the judgment, after deducting the net proceeds of the sale made under the alias writ.

The reasons assigned by the surety why judgment should not he rendered against him are, that the proceeds of the first sale were sufficient to satisfy the debt against Gennison, and that the adjudication to *398Mrs. Emanuel was not absolutely void, nor has it been legally-annulled.

There was judgment ordering the sheriff and judgment creditor to-refund the price of the adjudication to Mrs. Emanuel, as already stated, and that judgment is now res judicata.

The court a qua rendered judgment against the surety, and we have-discovered no error in it.

It is therefore ordered that the judgment of the lower court be-affirmed, with costs of appeal.

Eekearing refused.