Cudahy v. Rhinehart

not shown to have been in Bani & Turner, the defendants in the attachment; (2) that the sheriff demanded of the plaintiffs a bond of indemnity against the seizure of the property, which was refused, and (3) that the bond given by the plaintiffs was only intended to indemnify the defendant against the seizure of certain property not found.

The difficulty in the way of maintaining the reversal, or of examining here the questions upon which the reversal proceeded lies-in the circumstance that the facts upon which these questions-depend were not found, nor was any request made to find them, and there is no exception to any ruling upon either of the questions upon which the reversal was founded. The general term could reverse on the facts in the absence of any exception Roberts v. Tobias, 120 N. Y., 1 ; 30 St. Rep., 189 . If the order of reversal had stated that the reversal was on the facts, it would then become the duty of the court to ascertain from the record whether there was any evidence to sustain the conclusion of the general term.

But as the record stands, importing conclusively for the purpose of review here that the reversal was on questions of law only, it is incumbent on the respondent in order to sustain the order to-point out some ruling and exception taken on the trial which was erroneous. No such ruling or exception appears. Upon the findings of the trial court, which do not touch the questions raised by the general term, the judgment awarding damages to the plaintiffs was justified, and we cannot go outside of such findings in search of other facts, which if they had been found would have required a different result, especially as none of the facts upon which the general term proceeded can be said to have been uncontroverted.

No other course is open to us, therefore, except to reverse the order of reversal.

But the plaintiffs claim that a larger judgment should have been awarded them than was given by the trial judge, and that this court should correct the error in that respect But in this contention the plaintiffs encounter the difficulty that the general term had power to reverse or affirm on the facts, and it reversed the order on the defendant’s appeal and held that the plaintiffs ought not to have recovered - anything, thereby practically affirming the-finding of the trial judge so far as it excluded a recovery beyond the $550, and reversing his finding as to that sum. There was evidence tending to show that the plaintiffs had refused to indemnify the sheriff for the seizure of the property under their attachment, and that the bond subsequently given by them was given-for a specific and different purpose, and that the plaintiffs accompanied its delivery with written directions supplementing the previous understanding that the bond was not to be treated as having any relation to the property previously seized under the several-attachments.

We think it is a sound principle that where there- are several' attaching creditors of the same property, the title to which is in dispute, and on demand some give indemnity to the- sheriff and

others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachment may be prior to that of those who give indemnity. The sheriff • is ibound to act with openness and good faith, and must fully apprise the parties of the facts of the situation, and where this is done and any creditor refuses to give indemnity, it would be very inequitable to permit him to stand by and leave subsequent attaching creditors to take the responsibility and tight the battle, and in case they are successful take the fruits of the victory. The principle stated was adopted by the court below, and is supported by authority. Smith v. Osgood, 46 N. H., 178 ; see Drake on .Attachments, § 189.

The general term had power to affirm on the facts the judgment denying the plaintiffs’ claim for damages beyond the sum recovered, and this is substantially the effect .of the order of reversal. This is an answer to the claim now made that the court .should in disposing of the appeal go beyond a simple reversal of the order of the general term. The statute does not preclude the •court from presuming that an affirmance by the general term was upon the facts. The presumption that the court below proceeded ■on questions of law applies to appeals from reversals only, Code Civ. Pro., § 1338, and here, as we have said, the order of the general term, though a reversal in form, was an affirmance of the trial court upon the claim to recover a sum beyond the amount •of the original judgment. The result is that the plaintiffs are •only entitled to have the original judgment restored.

Order reversed and judgment of the special term affirmed, with •costs.

All concur.