
    Osborn v. Cloud.
    1. Jurisdiction! over attached property: levy after return day. The levy of an attachment' after the return day of the writ, and after it has been before returned as to other property levied upon, and default has been entered against the defendant, who is a non-resident, and served by publication only, is unauthorized and void, and gives no jurisdiction to the court to enter judgment against or order the sale of such property; and a sale thereof, so ordered, will be set aside on motion of tiie defendant.
    2. - VOID SALE : TENDER TO PURCHASER UNNECESSARY. A Sale of attached property under a judgment or order which is void for want of jurisdiction in the court to make it, may be set aside by the defendant without his first tendering to the purchaser the amount of his bid.
    8.- failure to appeal: motion. When attached property has been sold under a judgment or prder therefor, which the court had no jurisdiction to render, the attachment defendant is not bound, in order to save his rights, to appeal from such judgment, but he may have the same set aside upon motion therefor.
    4. Abatement: pendency of another action. The fact that there is another action pending in which the present plaintiff and defendant are both made defendants, and in which the present plaintiff might, by cross petition, obtain against defendant the relief he now seeks, will not abate the suit.
    5. Judgment: cannot be levied upon and sold. A judgment cannot be levied upon and sold under execution or attachment, the same as other property. Garnishment of -the judgment debtor is the proper course to be pursued, instead of levying upon the judgment.
    
      Appeal from PoVc, District Court.
    
    Wednesday, July 31.
    Jurisdiction over attached property : sale oe judgments on execution. — Osborn and Hubbell appeal from an order of the District Court setting aside, on defendant’s motion, the levy and sale of a certain judgment held by defendant Cloud against one McTighe. The facts necessary to make clear the points ruled, are these: Osborn commenced a suit by attachment in.the Polk District Court against Cloud, who was alleged to be, and was, a non-resident of Iowa, and a resident of North Carolina. Service was made by publication alone. A writ of attachment was issued against Cloud’s property returnable on the first day of the January Term, 1865.
    This was levied in proper time upon certain lots in Des Moines. The first day of the January Term, 1865, was January 9. The District Court found that “the writ of attachment was returnable on the first day of the January Term, 1865; that default was entered against Cloud on the second day of the term, being the 10th day of the month, and that, afterward, the sheriff made and indorsed on the said writ of attachment, on the 11th day of the same month, being the third day of the term, that he had levied said attachment on said judgment against McTighe;” the same being a judgment for $526, in the Polk District Court, previously recovered by Cloud against McTighe, and remaining on the records of the court unsatisfied.
    On the 12th day of January, Osborn had his judgment entered up against Cloud, and the court ordered the sale on special execution of the attached property including the judgment against McTighe. This judgment was afterward sold on special execution, to Hubbell, for the sum of fifty dollars. Cloud afterward moved to set aside the levy on and sale of the McTighe judgment. This motion was sustained, and the Supreme Court reversed the ruling of the District Court, because Hub-bell, the purchaser, was not a party to the proceeding. (See Osborn v. Cloud, 21 Iowa, 238.)
    The cause was remanded;. Hubbell was made a party, and the court again, on defendant’s motion, set aside the levy and sale. The District Cojirt assigned for its decision the following grounds: “ The court is of opinion that the alleged levy by the sheriff on said judgment against McTighe, after the return day of the attachment, and after it had been returned, and the defendant entered as in default, was without any authority of law, and wholly void, and gave this■.court, no jurisdiction to order said judgment to be sold. The order of sale being void, the execution gave no authority to sell said judgment, and the purchaser, P. M. Hubbell, by virtue of said sale, acquired no lawful right to control said judgment. It is therefore ordered that the said levy and sale be set aside,” etc.
    It is from this order that Osborn, the judgment creditor,'and Húbbell, the purchaser, appeal.
    
      Polk & Hubbell for the appellants.
    
      Jf. D. MeHenry for the appellee.
   Dillon, J.

I. The service being by publication, and the levy on the McTighe judgment having been made after the return day of the writ, and after it had been actually returned into court, and after default had been entered, we concur in opinion with the learned judge below, that the court acquired no jurisdiction over the McTighe judgment, and the order subjecting it to sale was void, and the sale under such an order was also a nullity.

. II. This answers the objection of the appellant’s attorneys, that no sufficient tender to Ilubbell of the amount he bid at the sale, has -been proved, or if ■ Prove(l) it has not been kept good. If the gaje wag Y0^ jfc may j^g ggj. asjqe without such tender.

III. This also answers the point made by appellant’s counsel, that the validity of the levy of the attachment, on the McTighe judgment, was adjudicated in this cause when the original judgment was rendered and no appeal was taken therefrom.

If, as we hold, the court had no jurisdiction in respect ■ to the McTighe judgment, any adjudication or order it made, was without legal force or effect. -

IY. Ye find that the point is not well taken, that there is another action pending, in which the defendant asks the same relief that lie now seeks. The suit referred to is by one Hampton and not the defendant.

The present defendant is also made a defendant in Hampton’s suit, and so is the present plaintiff. That the present defendant might by cross petition in Hampton’s suit, obtain the relief he now asks, is no bar to his right to make the present application.

Y. It is also argued that Cloud, who makes this motion, has ratified the sheriff’s levy and sale, by receiving the proceeds of the latter. This point is not sustained by the evidence.

The proceeds of the sale were received by Osborn and not by Cloud. Arranging for the lots sold on the second execution, would not ratify the sale of the AlcTighe judgment on the first execution.

YI. Again, the court is of opinion that although' a judgment is for some purposes called or likened to a chose ™ action (Burtis v. Cook, 16 Iowa, 194; Ballinger v. Tarbell, Id. 494), and, although ^ gta¿ute provi¿es that “bank-bills and other things in action may be levied upon and sold, or appropriated as herein after provided (see section 3322), and assignments thereon by the officer shall have the' same effect as if made by the defendant, and may be treated as so made” (Rev. §§ 3272, 3276), still, the sale of a judgment' in the manner here attempted is unauthorized. Section 3267 speaks of “ levying on property and collecting £ things in action,’ by suit in the officer’s own name.” Why speak of collecting by suit if it was meant that “ things in action ” should include a judgment already rendered % The use in section 3272, above quoted, of the words “ assignments thereon,” that is, on the instrument shows that the legislature did not contemplate the levy upon a judgment, the same as upon a bank-bill, promissory note and the like.

So section 3322, referred to in section 3272, speaks of “bank-bills, drafts, promissory notes and other papers of a like character,” etc. This is language not applicable to judgments.

The sections referred to, contemplate property, such as bills, notes, etc., that may be seized and taken into the possession of the officer; property having a visible existence, and of a nature to be present at the sale and delivered to the purchaser.

The statute provides for reaching “ debts due the defendant,” and the mode thus provided is by garnishment.

The plaintiff should have pursued this course; should have garnished McTighe, who was' a resident of the county, instead of levying upon the judgment as he would do upon a horse or other chattel.

' The sections referred to above, have introduced no such novelty into the law of Iowa, as levying upon and selling the judgment of a court.

Affirmed.  