Henderson v. Backus

delivered the opinion of the court.

1. Whether a fund of the character of the one here in dispute is of the nature contemplated by Section 40, B. & C. Comp., may well be questioned. That section provides, that “in any action for the recovery of specific personal property, if a third person demand of the defendant the same property,” etc., the court may, upon a showing made to that effect, make an order discharging the defendant from liability, and substitute such person in his place as defendant.

2. This is not being an action to recover specific personál property, the order of the court was irregular, but defendant Anderson was not made a party to this appeal, and, so far as he is concerned, the order must stand. His whole conduct in the matter has been so just and fair to both parties that we do not regret this result.

3. The amended complaint did not state a cause of *554action against defendant Backus. It is not alleged that he ever claimed the money in question, or was concerned in its detention from plaintiff.

The judgment as to defendant Backus will be reversed and the cause remanded with directions to sustain the demurrer. Reversed.