I. The first point of the appellant is not well taken; the action is not a proceeding in rem. The attachment of property is merely as security for any judgment that may be recovered. (See Practice Act, sec. 120; 1 Swan. Tenn. R. 211.)
The undertaking or bond given was not a substitute for the property attached, and this bond could only be prosecuted in case the execution was returned unsatisfied in whole or in part. (Practice Act, secs. 134 and 123.)
II. The second point of the appellant is not well taken. An appeal bond to the Supreme Court only stays the execution; it, in no respect, affects the lien of a judgment. (See Practice Act, secs. 349 and 204.)
III. The third point of the appellant is not well taken. The judgment was regularly docketed. As to the appellant, Adams, there can be no question of the docketing; and as to the defendant, Farrish, (who does not appeal) there can hardly arise a doubt; but if there were a doubt, so far as he is concerned, it will be time to consider of it when he appeals. Besides, what right has a defendant to raise any question as to the docket? The object of the docketing is to give notice to creditors and purchasers of the existence of a lien, not to the defendant. If the defendant owned the property sold at the time of the levy of the execution, he cannot object; and if he did not own it, what right has he to complain?
IV. The fourth point of the appellant is frivolous. The execution, when there is no docketing of a judgment, becomes alien only from the time of the levy; and so far as the judgment for the costs and damages in the Supreme Court are concerned, it is not pretended that a lien was created in this case until a levy.
V. As to the fifth point of the appellant, the respondents refer the Court to the case of Marysville v. Buchanan , 3 Cal. 212 et seq.
1. That the execution was not improperly or prematurely issued.
2. That it did not command the Sheriff to levy more money than was called for.
3. That the judgment of the District Court was a lien, and the statute had been complied with, and the execution only directed a levy upon real property possessed by the defendants at the time the judgment of the District Court was docketed, December 23, 1853, for the amount of such judgment.
4. That the execution did not command things to be done unsupported by the judgment.
VI. The sixth point of the appellant is without force. There is nothing in the record to show that the property levied upon was or was not joint property, and it is of no consequence whether it was joint or individual property. The defendant cannot object that it is individual property.
VII. The seventhpoint of the appellant is frivolous. What has the time in which the Sheriff makes his return to do with the validity of an execution or sale under it?
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
This is an appeal from an order of the Court below, denying a motion to set aside an execution, levy and sale.
The plaintiffs brought an action of assumpsit against Adams and Farrish, and sued out an attachment. After the execution of the writ, the property seized was released, the defendant giving bond, under the provisions of the Act. The plaintiffs obtained a judgment, which was affirmed by this Court. Execution was issued from the Court below, was levied, and the property sold. After the expiration of the time of redemption, Adams, one of the defendants, filed his motion to quash the proceedings, on the ground of informality.
The first error assigned is, that the remedy by attachment is a proceeding in rem, and the plaintiff must look to the bond, which, it is contended, releases the attached property, and is substituted instead thereof by the statute. This is not the case. The remedy by attachment is not a distinct proceeding, in the nature of an action in rem, but is an adjunct, or a proceeding auxiliary to the action at law, designed for the purpose of securing the property of the debtor, to answer the judgment which may be obtained. This is apparent from the language of the statute, which provides " that the plaintiff, at the time of issuing the summons, or at any time thereafter, may have the property of the defendant attached, as security for the judgment," etc. (Sec. 120 Prac. Act.) That the bond only operated to release the property from the custody of the Sheriff, pending the suit, and was not an actual substitution of security, is apparent from the one hundred and thirty-fourth section of the Practice Act, which provides that the plaintiff may proceed upon undertaking, if the execution is returned unsatisfied.
The second point, that the appeal bond operated a release of the lien acquired by docketing the judgment in the Court below, is not well taken. The appeal only stayed the execution, and did not impair the lien.
The third error assigned is, that the judgment was not properly docketed. The record shows, at least so far as Adams, the party now before the Court, is concerned, the proceeding was regular in all its parts. In fact, we do not see how the objection would avail the defendant, even were it true, in point of fact, that the judgment had never been docketed. It was either his, or it was not, at the time of the levy. If it was, the levy operated as a lien; if not his property, then he has no right to complain.
The fourth and fifth points are not well taken. The execution for costs became a lien, from the date of the levy, and was issued in strict conformity with the provisions of the statute.
To the sixth and seventh errors assigned, it is only necessary to say that the record does not show that the property levied on was not joint; that if it was not, it would make no difference under our statute, so far as the defendants are concerned, both of whom were served; and that the time in which a Sheriff makes his return to an execution, has nothing to do with the validity of the execution, or of a sale under it.
Judgment affirmed.