
    JACKSON, OGLESBY & CO. v. J. R. BURNETT.
    
      Attachment — Dissolution of Attachment — Restitution of Attached Property.
    
    1. Code, Section 373, providing ior the restitution oí property upon an order dissolving the attachment, does not apply to eases where there has been a sale or transfer of the property by the defendant to the plaintiff after the levy of the attachment.
    2. Notwithstanding the dissolution of an attachment, the plaintiff, who claims that the property has been transferred to him by the defendant after the levy of the warrant, is entitled to have submitted to the jury an issue as to the ownership of the property.
    Civil action, tried before Goble, J., at Spring Term, 1896, of Ghanvtlle Superior Court, on appeal from the refusal of a Justice of the Peace, upon the dissolution by him of the warrant of attachment, to order the attached property to be restored to the defendant. The plaintiffs claimed before the Justice of the Peace that the defendant, after the levy of the attachment, had transferred the property to them and in the Superior Court the defendant renewed his motion for restitution of the property attached. Plaintiffs resisted this motion, on the ground that the title to the propei’ty attached had been transferred to them by defendant, and that defendant was not the owner or entitled to the restitution or possession of said property, and demanded that a jury be empaneled to try the issue as to the title and ownership of said property. At the same time plaintiffs tendered the following issues for the jury to pass upon :
    “ 1. Is the defendant the present owner and entitled to the return of the property attached ?
    
      “ 2. Are the plaintiffs the owners and entitled to the possession of the property attached ? ”
    At the same time plaintiffs offered witnesses and documentary evidence in support of their claim and contention.
    His Honor refused to empanel a jury and submit to them the issues tendered, or any other issues, or to allow them to hear the evidence offered by the plaintiffs. To which ruling and refusal plaintiffs excepted.
    His Honor thereupon, without hearing any evidence, but upon inspection of the record in the case and after argument of counsel, allowed the motion of defendant and signed judgment directing the return of the property to him. • Plaintiffs appealed.
    
      Mr. A. J. Field, for plaintiffs (appellants).
    
      Mr. John W. Mays, for defendant.
   MONTGOMERY, J.:

The plaintiffs recovered j udgment for their debt against the defendant in a justice’s court without objection. The defendant’s attorney in that court entered a special appearance for the purpose of moving to vacate the warrant of attachment for the reason that the affidavit made by the plaintiffs was insufficient in law, which was allowed, and the motion was made. An order vacating the attachment was granted, but the justice refused to adjudge, upon the motion of defendant’s counsel, that the attached property should be restored to the defendant. From this refusal the defendant appealed to the superior court. In that court the motion made by defendant’s counsel in the justice’s court was renewed. It was resisted by the plaintiffs on the ground that the defendant was not the owner of and entitled to the possession of the property, and that he had transferred the same to the plaintiffs after tbe attachment had been levied. The plaintiffs offered to show the transfer of the property to them by witnesses, and by documentary evidence also, and ashed for a jury to determine by a proper issue the title to the property. His Honor refused to hear the evidence himself and find the facts, or to submit issues to the jury, but upon tbe record allowed the motion of defendant and gave judgment that the property be restored to the defendant.

Questions of fact, arising in proceedings that are ancillary to the main action, are heard and found by the judge, and his findings are conclusive where there is any evidence to support them. Issues of fact, raised by the pleadings, are to be tried by the jury. There was before his Honor no question of fact arising upon the attachment proceedings, nor was there any issue of fact raised by the pleadings in the main action. The attachment had been vacated by the justice without objection of the plaintiffs, and the plaintiffs had procured judgment on their debt without appeal by the defendant. There was before the superior court only the question of the restitution of the attached property. We think his Honor erred in not submitting to the jury upon proper issues the question of the ownership of the property. Ordinaiily, the order for a writ of restitution is a part of the judgment in cases where a party is put out of the possession of his property and the proceedings are adjudged void. And Section 373 of The Oode provides that in cases where an order has been made for the discharge of the attachment, the attached property shall be delivered to the defendant. But we think that the statute was not intended to apply to cases where there had been a sale or transfer of the defendant’s interest in the property since the levying of the attachment. There was nothing to prohibit the defendant from selling or transferring his interest in the attached property after the attachment was levied. The plaintiffs claimed title-to the property by transfer from the defendant and offered to show the same by witnesses, and also by documentary evidence.If the defendant had sold his interest in the property' to the plaintiffs, it would be a wrong to allow him to get possession of it through an order of the court. The property ought to have been delivered to its true owner. When an attachment has been dissolved by reason of a judgment in favor of the defendant, or otherwise, the special property of the officer in the attached effects is at an end, and he is bound to restore them, to the defendant, if he is still the owner of them, or, if not, to the owner.” Drake on Attachment, Sec. 426. To the same effect is the decision in Gates v. Fitzpatrick, 64 Mo., 185. The plaintiffs and the defendant were before the court, and the plaintiffs claimed title to the attached property by virtue of a purchase or transfer from the defendant, made after the attachment was levied, and we think that an issue to try the title should have been submitted to the jury. A stranger to the proceedings could have intei1-vened and set up title to the property, and it would seem that the plaintiffs, on the question of restitution, would be entitled to at least an equal right.

Error.  