Harger v. Spofford

Day, J.

i attachrútíon of:Sapl peal The only point made by appellant is, that the court had no jurisdiction to make the order of March 3d, 1876, upon the ground that the main cause had keen appealed. The judgment adverse to defendant was rendered on the 23d day of February.

The effect of the judgment against defendant was to discharge his attachment, unless appealed from within two days. Code, sections 3019, 3020.

On the 29th day of March, no appeal having been taken, the attachment was by operation of law discharged, and plaintiff then had a right to an order of court declaring that fact, and directing a surrender of the attached property. The *371 appeal was not taken until the day after plaintiff filed his motion asking this order. Defendant could not, by appealing in the main action, deprive the court of jurisdiction to make a proper order respecting the attached property.

The appeal did not revive or affect in any manner, the attachment. It removed to the Supreme Court, for review, no question connected with or affecting the attachment. The order of the court was in the nature of an amendment to the judgment entry. It would' have been quite proper for the court, when the main judgment was rendered to have ordered that the attachment be discharged, and the attached property be restored to the plaintiff. If this had been done, an appeal taken within two days would have suspended the order. As this order was not made, when the judgment was rendered, although the judgment in legal effect dissolved the attachment, the plaintiff had the right to move the court at a subsequent time for that order. Defendant could not, by appealing after the attachment was in legal contemplation dissolved, deprive the court of jurisdiction to enter an order of discharge.

The judgment of the court below,, directing a restoration of the attached property to plaintiff, is

Affirmed.