
    No. 18.
    No. 21.
    George D. Morgan & Co. v. Miller M. Spangler et al. George D. Morgan & Co. v. Alvin Bronson et al.
    
    1. Where a creditor of the mortgagor of personal property causes the same to be seized by legal process for the satisfaction of his debt, he acquires thereby a lien upon the property, subject to the rights of the mortgagee, and may sustain an action against the latter to redeem the property, or for other proper equitable relief.
    2. To an action of replevin by such mortgagee against the officer holding the property by virtue of such process, the creditor may cause himself to be made a party defendant, and, by counter claim therein, may set up- and enforce his said right to relief.
    3. It is not too late for the creditor to be admitted to come in as such party, and set up his claim, after the cause has been appealed to the district court, provided the fact of the seizure has been set up as a defence by the-officer in the court below.
    4. It is the duty of the court in such case, when the issues made between, the mortgagee and the officer, touching the right of property and possession, have been determined by the verdict of a jury, and judgment for damages entered in pursuance of the verdict, to retain the cause for further adjudication, so-far as regards the counter claim of the creditor.
    5. Where in such case questions arising under the counter-claim, and triableby the court, and not the jury, are submitted to the jury by agreement of parties, their findings upon such questions are not, in the further hearing of the cause, to be regarded as necessarily conclusive, but are subject to review by the court at its discretion.
    No. 18. Error to the district court of Cuyahoga county.
    No. 21. Appeal. Reserved in the district court of Cuyahoga county.
    These two cases were originally one and the same.
    The original case was an action of replevin brought by the plaintiffs on the 15th of July, 1856, against Miller M. Spangler, then sheriff of Cuyahoga county, to recover 1,525 tons of railroad iron. The plaintiffs claimed in their petition that they were the absolute owners of the property.
    Spangler answered, denying plaintiffs’ ownership and right of possession, and alleging that he held the iron by virtue of an execution in favor of Henry Yalette against the Chicago and Cincinnati Railroad Company, the alleged owners of the iron, for $10,506.15, levied upon 600 tons of the iron on the 21th of January, 1856, and on the remainder on the 15th of July, 1856.
    Spangler further alleged in his answer, that on the 8th of March, 29th of March, 26th of May, and 31st of May, 1856, respectively, he attached parcels of the same iron, by virtue of four several writs of attachment, which came into his hands, as such sheriff, at the respective suits of Bronson & Crocker, John Bates, The Bank of the Capital, and T. S. Goodman & Co.
    The cause was tried in the common pleas upon petition and answer, and then came by appeal into the district court, where it was again tried upon the same pleadings and resulted in a judgment for Spangler. This judgment was afterward reversed by the supreme court (11 Ohio St. 102), and the cause was remanded to the district court for further proceedings.
    Upon the return of the case to the district court, in 1861, Bronson & Crocker caused themselves to be made additional defendants, and, on the 6th of August, 1861, filed their answer. In this answer they set up the same defence as that of Spangler, and in addition, allege that they have a carrier’s Hen upon the iron for the amount of their claim in attachment, being some $1,100 due them for transportation, and pray that the plaintiffs may be adjudged to pay the same, and for other relief.
    At the September term of 1861, the other attaching creditors, Bates, The Bank of the Capital, and T. S. Goodman & Co., also caused themselves to be made defendants, and filed their respective answers. Each of these answers, in the first place, sets up the same defence relied upon in the answer of sheriff Spangler; in the second place, by way of counter claim, these respondents set up their claims under the attachment proceedings; and under this latter head they allege, that if the plaintiffs at tne time of commencing their suit had any property in the iron, or the right to its possession, they had such property and right merely as mortgagees of the railroad company, to secure a debt of some sixty thousand dollars, and no more; whereas the iron replevied was worth, and the plaintiffs have since its replevy sold it for, more than one hundred thousand dollars. These defendants, therefore, pray that the surplus of the proceeds of the sale of the iron, over and above the amount of the plaintiffs’ alleged mortgage (if they be found to have such mortgage), be subjected to the payment of these attachment claims, and that the plaintiffs be compelled to pay the same.
    In September, 1865, a motion was made by the plaintiffs to strike these answers of Bates, T. S. Goodman & Co., and The Bank of the Capital from the files, which motion was overruled. The plaintiffs then moved the court to strike from these answers, and also from that of Bronson & Crocker, all allegations and matters whereby respondents assert any liens upon the iron, or pray for the enforcement thereof, or for relief. This motion was also overruled; and the plaintiffs excepted to the rulings of the court on both motions.
    The plaintiffs then filed several replies, in which, among other things, they assert that their title to the iron is that of absolute owners, and not that of mortgagees; deny thát the iron belonged to the Cincinnati and Chicago Bailroad Company, on the 24th of January, 1856, the date of the first levy of the execution ; assert that the iron at that date belonged to other parties, of whom the plaintiffs purchased it subsequent to said lien, and prior to the service of said writs of attachment; and deny that either or any of the defendants have any levy upon the iron, or any right to recover from the plaintiffs any part of the price or value of the same.
    In January, 1866, the cause was tried to a jury. A bill of exceptions, taken at the time, sets forth all the evidence, and also sets forth a copy of an agreement entered into by the attorneys of all the parties to the action before the trial, of which agreement the following is a copy, so far as the same is material to the present case:
    “ It is agreed that this case may go to trial to the jury at the adjourned session of the present term, upon the pleadings of the plaintiffs and the defendant Spangler, except as hereinafter specified, and the issues made thereby alone; and the jury shall be directed to find, and shall find:
    
      “ 1st. Whether the plaintiffs were, at the time of the commencement of this action, entitled to the possession of the iron described in their' petition, or any part thereof, as against .the defendants other than Bronson & Crocker; and, if so entitled as to a portion only of the iron, then what portion.
    “ 2d. Whether the plaintiffs were at said time entitled to the possession of said iron, or any part thereof, as against said Bronson & Crocker; and if the jury shall find they were not entitled to the possession of said iron, or that they were entitled to the possession of a part thereof only, as against said Bronson & Crocker, then the jury shall find what was the lien or claim of said Bronson & Crocker, and the amount thereof, and upon what and how much iron it existed, which gave a right to them to the possession of said iron, or such part thereof, as against the plaintiffs.
    “ 3d. Whether the plaintiffs were the absolute owners of said iron, or any part thereof, at the time of the commencement of this action; and, if a part thereof only, then what part.
    
      “ 4th. Whether, at said time, the plaintiffs were mortgagees or otherwise lienholders only of said iron, or any part thereof; and, if of a part only, then of what part.
    “ In the event the jury shall find that the plaintiffs were entitled to the possession of said iron as against all of said defendants, and were the absolute owners of the same, then the jury shall assess the plaintiffs’ damages, and judgment shall be rendered by the court upon such finding.
    
      “ If the jury shall find that the plaintiffs were the absolute owners of said iron, and were entitled to the possession of said iron, against all the defendants but said Bronson & Crocker, and as against them were not entitled to the possession thereof, or of but a part of the same, then the court shall render a judgment on said finding, against the plaintiffs, for the amount of such lien of said Bronson & Crocker on such part of said iron, and in other respects for said plaintiffs.
    “In the event that the jury shall find that said plaintiffs were not entitled to the possession of the whole of said iron at the time of the commencement of this suit, or shall find that as to some portion of said iron they were not so entitled, then, in either case, such assessment of damages shall be made, and such judgment shall be rendered, in favor of the defendant Spangler, upon such finding, as shall be proper in the premises.
    “ If the jury shall find that the plaintiffs were mortgagees- or lienholders only of said iron, of of any portion of the same, then this case, as to the whole or the portion of such iron of which the plaintiffs shall have so been found to be mortgagees or lienholders only, shall stand for further hearing and disposal under the answers herein filed of the defendants other than Spangler and such further pleading as shall be, proper, growing out of the filing of the last-named answers, as the court, after the coming in of such verdict, shall, direct; the plaintiffs not hereby waiving any exception, or right of exception, to any ruling of the court heretofore made in respect to said answers, and the filing or striking from the files of the same. And leave is hereby given to the plaintiffs to file replies to answers aforesaid of said defendants other than Spangler by the first day of December next, and, at their discretion, within the same time, to make such new parties as may be proper by reason of the matter set up in said answers, and without costs.”
    The verdict was in these words:
    “ We, the jury, do find the issue with the plaintiffs in this case as to 942|- tons of iron, known as the Litchfield iron, and assess their damages at ten cents.
    
      “ And as to all the balance of the iron claimed by the defendant Spangler, in his answer, we find the issue with the defendant Spangler, and find that he had the right of possession only of said iron for the satisfaction of the execution issued upon the judgment of T. S. Goodman et al. v. The Cincinnati and Chicago Railroad Company and others, rendered by the superior court of Cincinnati, and assigned to Henry Yalette, and assess the damages of said defendant Spangler, by reason of the same, at $17,743.39.
    “ And we further find that Bronson & Crocker, as common carriers, had a prior lien upon the whole of said iron for the sum of $2,448.94..
    “ And we further find that said plaintiffs were not the absolute owners of any part of said iron.
    
      “ And we further find that said plaintiffs were mortgagees of the whole of said iron, and that said Bronson & Crocker have the first lien upon all of said iron for $2,448.94, the amount of their lien as common carriers; and that subject to said carriers’ lien, the plaintiffs have the prior lien upon said 942J tons of iron, known as the Litchfield iron, and that defendant Spangler, subject to said carriers’ lien of Bronson & Crocker, by virtue of the execution in his hands at the time of the service of the writ of replevin in this case, issued on said above-named judgment of T. S. Goodman et al. v. The Cincinnati & Chicago Railroad Company and others, had the first lien upon the balance of the iron claimed in the answer of said Spangler.
    “ And that said plaintiffs have a lien, as mortgagees, subject to the lien so found in favor of defendants Bronson & Crocker and Spangler, upon said balance of said iron.”
    The plaintiffs moved the court to set aside this verdict:
    1. Because of erroneous rulings upon the testimony.
    2. Because the verdict was not sustained by sufficient evidence, and was contrary to law.
    "Which motion the court overruled, and entered judgment as follows:
    
      “ It is therefore considered that said plaintiffs recover of said defendant Miller M. Spangler, their said damages, and .also their costs of suit to be taxed.
    “ It is also considered that said defendant Miller M. Spangler recover of said plaintiffs his said damages, and also his costs made herein to be taxed.
    “ Ordered that a special mandate be sent to said court of common pleas to award executions upon these judgments to collect the same.”
    To reverse this judgment the plaintiffs, in April, 1867, filed their petition in error in this court. In this petition there are fourteen assignments of error, the first three of which are as follows:
    “ 1. The court overruled the motion of the plaintiffs, September 7th, 1865, to strike from the files of said action the several answers of Timothy S. Goodman, Charles Goodman, and William A. Goodman, of John Bates, of The Bank of the Capital, and of Alvin Bronson and Lucius B. Crocker.
    
      “2. The court overruled the subsequent motion of the plaintiffs, September 8th, 1865, to strike from said answers of Timothy S. Goodman, Charles Goodman, and William A, -Goodman, of John Bates, and of The Bank of the Capital, the second statement of defence therein respectively contained.
    “ 3. The court also overruled the motion of the plaintiffs, on 'the day last mentioned, to strike from said answer of Alvin Bronson and Lucius B. Crocker so much thereof as alleges a lien, as carriers, upon the iron specified in the petition.”
    The remaining assignments, except the. last one, relate to the admission of numerous items of testimony, which it is unnecessary here to set forth; and the last. assignment is, that the court erred in refusing to set aside the verdict, the same being contrary to the evidence.
    At the September term, 1867, of the district court, the cause, as to the rights of Bates, Goodman & Co., and The Barde of the Capital, and which, by the terms of said agreement, were not to be submitted to the jury, came on for hearing, and thereupon plaintiffs moved the court to strike so much of said proceeding or cause as then apparently remained undisposed of from the docket, assigning as causes: 1. That the judgments entered at the September term, 1865, were final and disposed of the whole case. 2. That the district court had no jurisdiction in the action, of the matters alleged in the answers of said parties, and not concluded by said judgment.
    Which motion was reserved to this court for its determination.
    
      Geo. E. Pugh for plaintiffs :
    1. The district court should not have permitted T. S. Goodman & Co., John Bates, and The Bank of the Capital, or even Bronson & Crocker, to intrude themselves into the action of E. D. Morgan & Co. against Miller M. Spangler, sheriff of Cuyahoga county, and bring with them, into that action, a controversy as different in character, and in the proper mode of trial, as one could well suppose. Code, secs. 174 to 190 inclusive.
    Now, certainly, other sections of the code, in other chapters, under other titles, general or special, were not intended to give these a different meaning than is expressed by their own words. They mean (sections 174 to 190 inclusive) that a plaintiff who proves, at the trial, what he is required to-allege in his affidavit, shall have a conclusive judgment — conclusive, I mean, as to the particular controversy and the parties between whom it arose.
    They do not mean that when a plaintiff has come into court with a sufficient cause of action, as the code describes it, he shall be compelled, as a condition of obtaining that specific remedy which the code has appointed, to try other issues with mere strangers, arising out of other transactions, and in no wise affecting the right of possession.
    I do not say that other sections of the code than those constituting the second chapter of title eighth, and of a general character, ought not to be regarded; but I insist that no application can be made of them (properly) which will have the effect of undoing what the legislature has, in title eighth and chapter second, plainly and specially intended. In brief, and it is an observation of Lord Bacon: “All words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter and the person.” Maxims, Regula X.
    But no section of the code authorizes, in any degree, what the district court did. The nearest approach is section 44. But this applies to a plaintiff in execution; not (nor does any other section) to a plaintiff who has obtained merely an order of attachment. And the reason of the distinction is manifest. A plaintiff in execution acquires, or the sheriff in his right, a property in the chattels levied upon. Bardon v. McKinnie, 4 Hawks. 279. Et vide: Addison v. Crow, 5 Dana, 271. But a plaintiff in attachment has no property, nor has the sheriff as of his right, in the chattels attached, Colt v. Ives, 31 Conn. 25, 26.
    “ Upon application of the defendant,” that is, the sheriff, “ and of the party in whose favor the execution issued.” Spangler made no such application in this instance: he had been indemnified by Valette, and was willing to abide the issue. There was no substitution of a defendant for him; others were added simply.
    These answers are not counter claims; although, for lack of any other term of description, I have so called them once or twice. To be such (sec. 94) they must arise “out of the contract or transaction set forth in the petition as the foundation of the plaintiffs’ claim,” or be, at least, “ connected with the subject of the action.” And what is “the subject” of the action which Morgan & Co. instituted against Spangler ? The right of property in this iron % No ! Only the right to be in possession of it. Williams v. West, 2 Ohio St. 82, 84, 85, 90; Evans v. Hall, 1 Handy, 434, 437.
    Nor can these answers be regarded as cross-petitions. Code, sec. 84, as amended April 8, 1857. 4 Ourwen, 2922.
    The practice here sought to be introduced would confer on the sheriff or other such officer a privilege easily abused. Shaw v. Coster, 8 Paige, 339, 340; The People v. Schuyler, 4 Comstock, 173, 174; Slingsby v. Boulton, 1 V. & Beames, 334; Rogers v. Weir, 34 New York, 463; Caunce v. Spanton, 7 M. & Granger, 903.
    This court has lately decided that a sheriff cannot, even of his own motion, claim a trial of the right of property in chattels by him attached. Jones v. Carr, 16 Ohio St. 420.
    The truth is, the 44th section of the code prescribes the limit beyond which courts cannot indulge a sheriff or other such officer. Vide: Sifford v. Beaty, 12 Ohio St. 189; Id. 194, 195.
    See also Ward v. Howard, 12 Ohio St. 158, 160, 161, 162; Harrison v. King, 9 Ohio St. 388; Langdon v. Conklin, 10 Ohio St. 439.
    Nor can the 41st section be intended for such cases as are specified in the 44th section; otherwise the latter would be superfluous. It can have no application to the case of a plaintiff in attachment.
    The language of the 41st section is general and permissive. “ The court may order 'it to be done.” But this only in a proper case. The first paragraph in the answers of Goodman & Co., Bates, The Bank of the Capital, and in that of Bronson & Crocker, was superfluous: it merely affirmed what the sheriff had already, in his answer, well and sufficiently alleged. No reason can be suggested in favor of such repetition.
    But our question is chiefly with respect to the second paragraph, or supposed cause of counter claim. This cannot be admitted, in the present action, without interpreting those words, “having an interest in the property,” in their universal sense. The 41st section did not so intend. Its design is only that where Hob judgment to be pronounced in a particular action, upon the issue or issues therein made, will affect the interest of some person who is not a party — deprive him of some right, or, at least, render the assertion of his right more difficult — such person, as long as the cause remains in a court of original jurisdiction, may be admitted to allege his right and have it determined.
    Section 41st cannot have a wider operation than section 35. That has been construed precisely as I construe the other (41st) section. Union Bank of Massillon v. Bell, 14 Ohio St. 200, 211.
    The true practice is, and must be, that while a cause remains in the court of original jurisdiction, if a proposed enlargement only involves some question of costs, and will not prejudice the trial of any issue joined, other persons having “ an interest ” in the property, that is, an interest in the particular method of disposing of the property then-attempted, may be admitted as supplemental parties, and once admitted, have any relief, equitable or legal, which may seem appropriate. Story on Equity Pleadings, ch. iv., sec. 72. See, also, Mitford’s Treatise, edition by Jeremy, 170, 171.
    So much with regard to the question if it had arisen in the court of common pleas. But this action was pending in the district court on appeal.
    As we have seen, whether denominated answers, counter claims, or cross-petitions, the papers filed by T. S. Goodman & Co., John Bates, and The Bank of the Capital, on the 4th of September, 1865, introduced a new cause of action in their behalf, and against the plaintiffs, with which Miller M. Spangler had and could have no concern. See constitution, art. 4, see. 6; Logan Branch Bank, 1 Ohio St. 432; Kent v. Mahaffy, 2 Ohio St. 498; Wheeler v. Treasurer of Muskingum County, 8 Ohio St. 393; Grant v. Ludlow, 8 Ohio St. 1, 2, 25-32; Wiswell v. The First Congregational Church of Cincinnati, 14 Ohio St. 31, 32, 34, 35; William v. West, 2 Ohio St. 90 ; Code, sec. 184.
    The motion of the plaintiffs, at September term, 1867,. presents yet another question. It appears by the verdict that the alleged mortgagor, the Cincinnati and Chicago Railroad Company, had not, on the 8th of March, 1856, the date of the first order of attachment, or at any time thereafter, any right to the possession of the property said to have been mortgaged. And it certainly had no actual possession. How, therefore, could the orders of attachment have any effect ? I aver they had none. Grinnel v. Brashears, 1 Handy, 509, 512; Carty v. Fenstemaker, 14 Ohio St. 457-463.
    
      The verdict of the jury made an end of the claim of Goodman & Co., Bates, and The Bank of the Capital. They acquired no Hen by their orders of attachment; the Cincinnati and Chicago Railroad Company having neither potential nor actual possession of one pound of this iron, Whether the judgments they have since obtained, in the court of common pleas, amount to anything, or not, I have no present occasion, to say ; but I say that their connection with the case of Morgan v. Spangler — for they were parties to the agreement of counsel quoted above — terminated, abruptly, as soon as the verdict had been received. Therefore, as my motion avers, the judgments of the district court of Cuyahoga county at September term, 1865, were final as to them as well as to Valette and Spangler; and therefore, also, the court no longer had any jurisdiction, m that coction, of the matters which they alleged.
    The plaintiffs were not simply mortgagees but absolute owners of the iron in controversy, upon all the evidence adduced ; and the court admitted incompetent evidence.
    It is said, however, that the plaintiffs agreed to submit the question whether they were mortgagees, or not, to the determination of the jury. The plaintiffs made no such agreement. I do not deny that they agreed as to the form and the order in which the jury, having to decide all the issues of fact, should pass on those issues; but I deny that the question whether the plaintiffs were or were not mortgagees ever went to a jury, as distinguished from any other method of trial, at their suggestion or by their consent. It became a question for the jury in consequence of the decision of the district court on the 8th of September, 1865, refusing to strike from the answers of Goodman & Co., Bates, and The Bank of the Capital the new matters therein alleged.
    
      R. P. Ranney and E. J. Estep for defendants:
    1. The district court was right in allowing these creditors-to be made parties and to file the answers they did.
    The whole argument for the plaintiffs proceeds upon an assumption that has no foundation in fact, viz.: that the attaching creditors were first introduced into the case in the district court, and that they brought there a controversy foreign to anything involved in the original action. At the time these parties obtained leave to answer, what was the case as shown by petition, answer of Spangler, and reply? The plaintiffs claimed to be the owners, entitled to the immediate possession of the whole iron; and by the replevin, had taken it out of the possession of Spangler, and into their own. Spangler denied this, and claimed the general property to be in the railroad company; and justified his possession of it as an officer, merely, acting for the several persons who had process in his hands against that company. The iron was the “subject of the action;” the action was brought to recover that “ specific personal property; ” and the parties in interest were the plaintiffs on the one hand, claiming the whole property and all interests in it, and the judgments and attaching creditors on the other, claiming a lien upon, it equal to their debts. The sheriff had no interest, and was simply a trustee for the creditors of their process in his hands, and of the property seized upon it. Not a step could be taken in the progress of the case that would not involve the merits or demerits of one or the other of these parties in interest. It is idle, therefore, to speak of these attaching creditors as strangers to the controversy. Their interests were alone involved, their rights could alone be relied upon, and the most that can be said is, that up to a certain point, they manifested their rights and interests through the trustee which the law had designated to execute their process. The mortal sin is, that the court finally let them speak for themselves, instead of requiring them longer to do so through this trustee. Now, it will be readily conceded, that the extreme claims of either or both of these parties, as to all. or some part of the iron involved in the action, might fail, and yet each have interests in it, or in its proceeds, which the law would protect and apply. If the plaintiffs were but mortgagees, they might have the right to the possession, and the first lien upon the proceeds of it; and yet the attachments would have bound the equity of redemption, and any surplus of the proceeds upon a sale. As to any such surplus, the plaintiffs would have held it in trust, to be applied upon the judgment recovered in the attachment cases. But to meet such a state of the case, and to enable the court to make a complete disposition of the proceeds of the property in dispute, more facts than were found in the original pleadings, and chiefly of a supplemental nature, were necessary to be stated. It would be necessary to aver that, at most, the plaintiffs’ title was of this collateral character; that their lien was for a given sum only, and that they had sold the property, and had the proceeds for a much larger sum; and that the claims of the attaching creditors had passed into judgments, which they were entitled to have satisfied from that surplus. And this is exactly what they were permitted to, and did set up ; and their answers in this respect constituting equitable counter claims, were filed by persons having, from the outset, interests in the property in dispute — indeed, by the only persons, except the judgment creditor, having any real interest adverse to the plaintiffs. It was simply saying to the plaintiffs — you are not the absolute owners of the property as you claim, but you may, nevertheless, be entitled to the possession which you have taken by the order of delivery in replevin, and in the event you are, we claim of you the surplus of the proceeds, after paying your lien, to satisfy our judgments.
    But our learned friend insists that such a counter claim is not allowable in the action of replevin; that it requires a different mode of trial from that of the issues as to the right of property and possession, and therefore requires a separate action; and that, in no event, can this claim be first made in the district court, by parties allowed to intervene there.
    But see Grinnel v. Brashears, 1 Handy, 510; Code, secs. 93, 94, 95. Does anybody doubt that these general sections apply to the action for the recovery of specific personal property, as well as to all others ? If not, their obvious import is too plain to need comment. That these creditors, allowing their answers to be true, acquired a valid lien by their attachments, upon any surplus there might be in this property, or its proceeds, after paying the plaintiffs’ mortgage; and that, notwithstanding their recovery of it by replevin, such surplus might be subjected by an action brought by the creditors, has been conclusively settled by the case of Carty v. Fenstemaker, 14 Ohio St. 457. Thus far, the interest of these creditors in “the subject of the action,” the liability of the plaintiffs, arising from their possessing themselves of that subject, to hold any surplus in it for these creditors, and the right to assei-t this interest by way of counter claim, seem to be beyond controversy. By whom must it be asserted % It need not be doubted that it could be done for the creditor, by their legal trustee, the sheriff, by a supplement to his. original answer, filed after the plaintiffs had converted the property into money, and judgments had been rendered upon the attachment claims; and still, the .perfect right and complete propriety of allowing the creditors themselves, the real parties in interest, to do it would not be in the slightest degree dispx’oved. Aside fx-om the general prixiciple, allowing evei-ybody to be a pax'ty who is either xiecessary orpx’oper to a complete settlement of all xághts and interests involved in an action, the code (sec. 41) expressly allows this very thing to be doixe, and in this very class of actions. It px’ovides “ when in an action for the i’eeovex’y of real or personal property, any person liming an interest in the property applies to be made a party, the court may order it to be done.”
    This was an action for the recovery of pex’sonal propexly we had an intei’est in it, jus in re / we applied to be made parties, and the court ordered it. This tells the whole story. See Union Bank of Massillon v. Bell, 14 Ohio St. 200; Grant v. Ludlow, 8 Ohio St. 28; Babcock v. Camp et al., 12 Ohio St. 11; Massie v. Stradford, 11 Ohio St. 596; Armstrong v. McAlpin et al., 18 Ohio St. 184.
    2. But suppose the court exued in allowing these counter claims to be filed, or in refusing to strike them off — of what importance is that ruling to any question now presented to this court ? The fact that they were placed upon the files, and still x’emain there, can harm no one, until the court shall find the facts stated in them to be true, and shall render a judgment upon them. As yet, the questions arising upon them, both of fact and law, are wholly undetermined by the district court. The judgment already rendered and now under review, is not founded upon these counter claims, but is the direct result of a finding upon the issues, originally joined, between the plaintiffs and Spangler. It is not founded upon any equitable lien on property to which the plaintiffs had any title whatever, but upon the value of property taken by them, to which they had no title as against the levy made by the sheriff, upon the execution held by him. It is precisely the judgment that must have been rendered if the attachment creditors had never been made parties to the action. If no agreement had been made, those issues alone, and the evidence to prove them, would have been submitted to the jury. But it was entirely competent for the parties to agree what questions, other than those involved in those issues, should be sent to the jury and responded to by them. The parties did so agree and entered their agreement upon the record, and the trial which ensued was conducted in precise conformity with that agreement. The plaintiffs had their election, whether the jury should be charged to inquire of anything beyond the original issues in the case or not, and having elected to send to them the additional questions, and take their chances for a favorable response, they cannot, or ought not, to be heard to object to that which they' expressly agreed should be done. To allow it would not only be to allow them to violate their own agreement, upon which both court and parties acted, but to trifle with the rights and interests of the adverse party.
    Without any agreement of the parties, there could be no doubt of the right of the court, under the 264th section of the code, to order these questions to be answered by a jury. They constituted the main issues made upon the counter claims of the attaching creditors; indispensably necessary to be solved before any decree could be made upon that branch of the case. The court might itself solve them, or, in its discretion, order it to be done by the verdict of a jury. What the court might have done, the parties by voluntary agreement did. No order was necessary; no objection was made ; and no exception taken.
    Plaintiffs’ counsel claims, that upon the whole testimony, the plaintiffs were absolute owners and not mortgagees of the iron. It is certain that the answers aver that they were mortgagees only; and, notwithstanding the denial in the reply, it is equally certain that the jury have found, this averment to be true. When, under any circumstances or any sort of a verdict, could this finding be reviewed % Not, assuredly, until effect had been given to it, by carrying it into judgment.
    
   Welch, J.

These two cases were originally one, and as. the same questions are substantially involved in each, they may well be considered together. A disposition of the-questions made by the assignments of error in the first-named case will be a disposition of both.

These assignments, though nominally fourteen, are substantially but three: (1) The verdict was contrary to evidence. (2) The court admitted incompetent evidence. (3) The-counter claims of the creditors were improperly admitted into the case, and form no legal part of it.

As to the first and second of these assignments of error it is only necessary to say that we do not think they are sustained by the record, and that they give rise to no legal questions which need be reported.

It only remains to inquire: Did the court err in admitting- and retaining the matters of counter claim ? This is an important question of practice. After full argument, and due-consideration, we . answer it in the negative. In so doing we think we are but carrying out the spirit and intention of the code of civil procedure, a leading object of which seems, to be the avoidance of circuity and multiplicity of suits, where substantial justice is attainable without such circuity and multiplicity.

These attaching creditors had an interest in the subject-matter of the suit.” That interest was adverse to the claim* of the plaintiffs. And the subject-matter was personal prop* erty, capable of being removed out of the jurisdiction of the court, or otherwise disposed of, so as to defeat their liens. They were necessary parties to a full determination of the actual controversy. By the seizure in attachment they acquired a lien upon the iron, subject to the plaintiffs’ rights under the mortgage, and they had, therefore, the right to bring an action against the plaintiffs to redeem, or to compel an account (Carty v. Fenstemaker, 14 Ohio St. 457). Having this right, is there any good reason why they should not, in a case like the present, be allowed to come in and assert it by counter claim? Would anything be gained to that substantial justice ” of which -the code speaks, by allowing the plaintiffs, in every such case that might occur, to recover the property from the nominal party, the officer, who acts as agent of the creditor, and turning the latter, who is the real party, over to his right of separate action ? In many cases, as where the action would have to be prosecuted in a foreign forum, that right would be utterly worthless, and the creditor’s only security be in his right to come in as a party to the replevin suit. In the case of Armstrong v. McAlpin et al., 18 Ohio St. 184, similar in its facts to the present case, the sheriff was permitted to set up and enforce a like counter claim on behalf of attaching creditors, against the plaintiff in replevin, a mortgagee. If the sheriff may set it up for them, why may they not be permitted to come in and set it up for themselves ? Indeed their coming in does not seem to be complained of. It is the matter they set up that is objected to. If that matter might be set up for them by the officer, it is difficult to perceive why they might not set it up for themselves ? In the latter event, the real parties in the controversy interplead with each other, and the officer, who stands between them, and who claims no personal interest whatever, is relieved from responsibility and danger. Surely a practice which thus allows the whole controversy to be settled in one action, and to be settled by the actual, and not the mere nominal parties thereto, cannot be outside the spirit and intention of the code of civil proced' ure.

But it is said that it is too late, after appeal to the district court, to permit these claims to be brought into the case. The answer to this objection is, that the substantial facts on. which the counter claims rest were set up in the answer of the officer in the common pleas. By his answer there he denied the absolute ownership asserted by the plaintiffs, and set forth these seizures in attachment. By their answers in the district court the creditors merely reassert this ground of claim and add certain supplemental facts, namely, that they have since obtained their judgments in attachment;, and that the plaintiffs have since sold the iron for a specified sum. And upon the case thus made they demand relief. This is in no just sense a matter foreign to the original controversy. It is germain thereto, and in furtherance and aid of its complete and final determination. It seems to us that the appellate court could as well permit this claim to be set up by the creditors, as it could permit the officer to do so, by way of amendment or supplement to his original answer. That the court liad power to allow such amended or supplemental answer by the officer will hardly be denied. It seems to us that the cases of Grant v. Ludlow, 8 Ohio St. 28; Babcock v. Camp et al., 12 Id. 11; and Union Bank of Massillon v. Bell, 14 Id. 200, sufficiently establish the power of the appellate court to allow a defence like this to be interposed, and the propriety of its exercise in a case situated as the present.

It is no valid objection to the admission of these countei claims, that issues upon them require a trial by the court. It is well settled in Massie v. Stradford, 17 Ohio St. 596, that this is no ground of objection, and that such cases may, foi certain purposes, be treated as two actions. One branch of the case being disposed of, the other may remain upon the docket, or be remanded, as the case may require, for final adjudication.

We see no error in the judgment sought to be reversed. In case No. 18, therefore, the judgment must be affirmed, and in case No. 21 the motion reserved for consideration here will be overruled and the cause remanded for further proceedings.

It is proper to add, that in such further proceedings the findings of the jury, as to questions arising exclusively under the counter claims, and therefore triable by the court and not the jury, although made by and under the agreement of parties, are not to be regarded by the court as conclusive of the facts found, but are subject to its review in the further hearing of the cause.

Brinkerhoff, C.J., and Scott, White, and Day, JJ., concurred.  