Pfiefer v. Hartman
Pfiefer v. Hartman
Opinion of the Court
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
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.
Reference
- Full Case Name
- Pfiefer & Dreyfus v. F. H. Hartman
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Attachment. Judgment discharging lien. Defective appeal-bond. Effect on rights of claimant. Sects. 2434 and 2435 of the Code of 1880, in relation to attachments, provide that, “if the issue on a plea in abatement be found for the defendant, the attachment shall be thereby discharged, and all property seized under it; ” but “ if the plaintiff, within five days after the expiration of the term of the court at which judgment is rendered, discharging his attachment, shall perfect an appeal from such judgment, the attachment shall not be discharged, nor the property released therefrom, but such appeal shall preserve the attachment in full force, to await the result of the appeal.” Sects. 2324 and 2325 of the Code require that all appeal-bonds shall be signed by two sureties, freeholders in the State. Under these provisions, an appeal-bond given by a plaintiff in attachment against whom a judgment has been rendered upon a plea in abatement, if signed by only one surety, is defective, and does not, as against a claimant, preserve the lien on the property attached during the pendency of the appeal; nor can the lien be restored, as against the claimant, by the defendant in attachment waiving objection to the appeal-bond, and consenting to the rendition of a judgment in this court condemning the attached property to sale to pay the plaintiffs demand. 2. Same. Defective appeal-bond. Discharge of claimant. Where, by reason of the giving of such defective appeal-bond, the lien on the attached property is lost, a claimant of the property is discharged from all obligation to further maintain his claim. 3. Same. Proceedings statutory. Rule of construction. Proceedings in attachment being purely statutory, the statute must be complied with by the plaintiff, in order to entitle him to the benefit of its provisions.