Wm. G. Zinn, Aldrich and others, Appellants, vs. Louis Dzialynski, Respondent, and Sanderson & L'Engle, vs. Louis Dzialynski, 14 Fla. 187

RANDALL, C. J., delivered the opinion of the court. This cause was submitted on briefs by the respective counsel. At the time of submitting the cause, Mr. L’Engle, •■for Sanderson & L’Engle, and as counsel for Dzialynski, entered a motion to strike the cause of Sanderson & L’Engle vs. Dzialynski from the docket, because it purports to be an appeal taken by said firm of Sanderson & L’Engle, whereas in fact neither they nor the survivor took or desired an appeal, and that no appeal has been ta,ken in the cause of Sanderson & L’Engle vs.

Dzialynski; and for the further reason that neither party to said cause is willing that said cause should remain on the docket. The cause upon the docket is entered therein under the double title of the two causes referred to, as the same appears upon the order from which the appeal was taken. The appeal, however, was taken only by Zinn, Aldrich & Co., and their right to appeal from the order, as it affects their interests, has not been questioned. The objection raised by the motion to strike from the docket, is to the use of the names of Sanderson & L’Engle in the title of the proceeding.

As the appellants, Zinn, Aldrich & Co., were affected by the order, they had a right to appeal, and the use of the names of the other parties was proper. This peculiarity in the form of the order creates no embarrassment, and indeed the use of the names of the parties in both suits for the purposes of this appeal is made necessary by the peculiar form adopted in framing the order. The order is an adjudication in favor of Sanderson & L’Engle and against the appellants. It appropriates a fund to Sanderson & L’Engle, which, it is claimed by the appellants, belongs to the latter.

The fund is the money realized by ths sale of the property of the party who was the defendant in both suits in the Circuit Court, which fund must be applied upon the execution of one or both of the plaintiffs. We think that L’Engle, survivor, &c., is an indispensable party to the appeal, as he was a party to the order, and his relative position is that of a respondent. The appeal was properly perfected by serving the notice upon him as a party and as the attorney of Dzialynski. Neither Mr.

L’Engle, as survivor, nor Sanderson & L’Engle, purport to be appellants. , The appellants are entitled to be heard, and have taken the only course left to them by the law to obtain their alleged legal rights. The motion to strike the cause from the docket, therefore, cannot be granted. The appellants seized the goods of Dzialynski by means of a writ of attachment levied in Mjxy, 1870. The defendant made an issue by a traverse of the affidavit upon which the writ issued, and upon trial of this issue the writ and the suit were dismissed.

Whereupon the plaintiffs appealed from the judgment of dismissal, and the judgment being reversed, the suit was restored to the docket of the Circuit Court and stood as though no trial had been had. No subsequent trial of the traverse was had, but a final judgment upon the merits in favor of the plaintiffs, for $1,788.65 and costs was rendered by the Circuit Court, as we understand the record. It is insisted that the judgment was taken without notice to the defendant or his. attorneys, and therefore was irregularly entered.

This may have been the ease, but still it is a judgment of a court of record, and the regularity of the proceedings cannot be called in .question in this manner, the court having had jurisdiction of the parties and oí the subject matter. If there were cause for setting aside the judgment or reversal on accoxxnt of irregu-' larities, the parties had their remedy by motila to the proper court. While it stands xxnreversed, a mere irregularity in a matter of practice cannot be inquii’ed into collaterally as in this proceeding.

The more important question, however, is, whether the appellants are entitled to the proceeds of the property attached by them. Sanderson & L’Engle commenced their suit by summons against the same defendant in December, 1870, and obtained their judgment in January, 1871, several months before the appellants obtained their judgment, which latter was taken in June, 1871.

The appellants claim that they had an exclusive lien upon the proceeds of the property attached, and that such proceeds- should be applied to the payment of their judgment and execution; while L’Engle, survivor, &c., insists that Sis judgment and execution must be first satisfied, as the latter judgment, having been first entered, created alien prior in right to that of the appellants, and so-held the Cir-e'«it Court.

Section 9 of the act of February 17, 1833, (found in Thompson’s Digest, 368,) reads as follows : “ The service of a writ of attachment shall not operate to- dispossess the tenant of any lands or tenements, but such service shall bind the property attached, except against pre-existing liens; but the judgment in a suit commenced by attachment shall be satisfied in the same manner as other judgments obtained at the same term of the court are, or shall be satisfied out ®f the lands and tenements, goods and chattels generally of the defendant in attachment; provided, however, that judgment-rendered against any garnishee or garnishees in said suit shall be appropriated exclusively to the satisfaction of the judgment rendered against the defendant, commenced fey attachment as aforesaid.” Counsel for the respondent insists “ that the attached property was not to be appropriated, under this statute, to the payment of the judgment obtained by the attaching creditor,’unless such judgment be older than others, but that all judgments were to be satisfied, according to priority the only effect of the attachment being-to hold the property for the payment of debts according to priorities to be after-wards establishedand reference is made to the case of Post & Carpenter, 3 Fla., as establishing the construction thus contended for.

In that case the conflicting claimants were all attaching creditors, and their judgments were all obtained at the same term. We do not see that the court gives such a construction to the act as that the terms “ pre-existing liens ” referred to the-date of the judgments to be thereafter recovered and gave to such judgments a priority of lien over that of an attaching creditor whose writ was levied before any judgment was obtained. The terms “ pre-existing liens” must refer to liens existing prior to the levy of the attachment. In the cases mentioned in the

section quoted, - the writ of attachment, duly levied, created a lien upon the property-seized, .and this lien must be enforced in favor of the attaching creditor, to the exclusion of all subsequent liens, except, perhaps, as to such judgments as might be “ obtained at the same term of the court.” It does not in express terms or by implication yield any right to a judgment creditor whose judgment may be obtained at any other term or tima The court remarks in Post & Carpenter that “ this law of attachment being in derogation of the common law, we are not disposed to extend its provisions bdyond the manifest meaning of its terms; and we should be loth so to extend them as to give a preference to attaching creditors over those who pursue the ordinary process of law, unless the statute contained clear and unequivocal words to that effect.” The 12th

section of the act of 1833, found on the same page, 368, of Thompson’s.Digest, is as follows: “Allpersonal property levied on by attachment, unless replevied, shall remain in custody of the officer who shall attach the same until the judgment of the court shall be pronounced, but when the property attached shall be of a perishable nature, it shall be lawful * * to grant an. order for the sale of such property, * * and the proceeds of such sale shall be paid into court and abide the judgment thereof.” It seems clear that the latter

section in providing that personal property attached, or its proceeds if sold, shall remain in the custody of the officers of the court until the judgment of the court shall be pronounced, and abide such judgment, secures and continues to the attaching creditor aspeciñe lien upon it; and as a previous

section provides that the writ shall require the officer to attach only so much of the defendant’s property as will be sufficient to satisfy the sum demanded by the plaintiff in that writ, it would seem that it was intended to provide a security for the claim of that plaintiff only, and without some clear expression of the law to the effect that the proceeds of personal property attached shall be distributed among other creditors who have not attached it, thus taking away the security obtained by the more' vigilant creditor, we are not inclined to give a construction that will produce such a result.

That such may be the case where real property is attached, is not the questión here.

The court in Post & Carpenter has given to several attaching creditors, where personal property has been attached, a pro rata share of the proceeds without reference to the priority of the levy of the several attachments, where judgments were obtained at the same term. (What would have been the result if the creditor who obtained the first levy of an attachment had been unable to obtain his judgment until a term subsequent to that in which other creditors obtained judgments, the court in that case has not determined.) It' may be that a literal observance of the terms of the statute would be attended with some embarrassment, and might work 'injustice in some instances ; but as the present case is not attended with such circumstances as to present any of the difficulties suggested, we are not required to go in search of them, nor do we conceive that the judgment of the court in the case referred to is inconsistent with our conclusions in the case before us.

The judgment of Messrs. Sanderson & L’Engle does not appear to have been obtained at the same term as that of the appellants, neither was their suit commenced by writ of attachment. ■ But if there were any doubts upon the matter in question under the former statute, we think the provisions of the Code have removed them.

Section 86 of the Code provides that in case judgment be entered in such action, the sheriff shall satisfy the same out of thPe property attached by Mm, if sufficient for that purpose, by paying, over to the plaintiff thegjferoceeds of all sales oimerishaW property, and of any vessel or share or interest in any vessel sold’ by Mm, or of any debts collected by him; and by selling under execution any other property attached to satisfy any balance due, &c., and generally to apply all the proceeds of attached property to the payment of the judgment.

The provisions of the Code apply to actions pending at the time of its taMng effect, (July 1, 1870,) and the appellants’ suit was then pending. The cause of action of Messrs. Sanderson & L’Engle, upon which their judgment was obtained, had not then accrued. - By the terms of the statute, as we have seen, the levy of the appellants’ writ created a lien upon the attached property, and no circumstances are presented which, under the statute, have deprived them of such lien. No other creditor had an interest in the lien.

The attaching creditors could, at any time, have released their levy, and the property would have been returned to the defendant unincumbered, unless a subsequent levy had been made. From the view we have taken, it results that the order appealed from must be set aside. Exception was taken to the latter part of the order which allows to the attorney of the sheriff twenty dollars for preparing the answer of the sheriff to the rule requiring him to report the amount of the proceeds in his hands, and to show cause why it should not be paid over, &c.

This is a duty required of the sheriff) for which no specific fee is provided, and we think the court is not authorized by law to prescribe one. That is the province of the. Legislature.

An act entitled

an act to decrease the expenditures of the State and to regulate the fees of officers, approved June 6, 1870, provides that the officers named, in-»eluding sheriffs, shall not make any charge, whatever, except that in this

section prescribed; and as no such allowance or charge is prescribed, it is forbidden. Order reversed.