
    Harrow et. al. v. Lyon.
    An order of the district court, dissolving a writ of attachment, vacates the attachment lien. Such lien is also vacated by a judgment against the plaintiff on demurrer, if rendered absolute by his failure to amend, or to except to tho ruling of the court, on points of error for the supreme court.
    Whore a judgment appears of record to be final against the attaching plaintiff, the attachment lien not revived as against third parties, if the judgment is subsequently reversed.
    Error to Wapello District Court.
    
   Opinion by

Greene, J.

An action of right commenced by A. M. Lyon against AL and C. E. Harrow to recover the south-east one-feurth of the north-west one-fourth of section seventy-two north of range fourteen west.

We learn from the record in tbe case, that E. Cole purchased the land in question of the United States, by virtue of a pre-emption right, on the first day of March, 1845. On the fifth day of the same month Herman P, Graves, agent of Seth Richards and C. W. Cowles, doing business under the name of Seth Richards & Co., sued out a writ of attachment, which was made returnable on the third day of the next term of the district court. The writ was issued against said Cole and served by attaching the land in dispute.

On the tenth Say of the same month, Cole conveyed the land by warrantee deed to Francis M. Harrow, one of the plaintiffs in error. This deed was duly filed for record March U, 1845.

At the April term, 1845, of the Wapello district court, pole filed a demurrer to the declaration in the attachment -'feuit. The demurrer was sustained and plaintiffs obtained 'leave to amend their declaration within sixty days. At the game time Cole moved to dissolve the writ of attachment. The motion was sustained and the attachment accordingly •dissolved.

At the next term of the district court, Cole confessed judgment in favor of Herman P. Graves. Upon this judgment, a general execution was issued in favor of said Graves, against Cole. The execution was levied upon the land in dispute, and it was sold at the sheriff’s sale, to A. M. Pyon, and the sheriff’s deed was executed for the same, November 22,1845.

Thus matters rested till 1847, when the case of Graves v. Cole was taken to the supremo court by writ of error, and at the June term, 1848, the judgment of the district court dissolving the writ of attachment was reversed. 1 G. Greene, 405; 2 ib. 467.

The foregoing facts were established beyond dispute by the records, &c., adduced upon the trial of this cause. Upon these facts the court instructed, the jury that the proof introduced by plaintiff was sufficient to show a title in him, upon which he was entitled to -recover. This ruling of the court is now objected to, and involves but one question which we deem worthy of consideration.

Did the attachment lien, Which was made March 5, 1845, in the case of Herman P. Graves agent of Seth Eichards & Co., and W. Cowles v. Ephraim Cole, attach to the judgment and execution sale in the case of Herman P. Graves v. Ephraim Cole, and thus secure to Lyon’s sheriff deed, executed November 22, 1845, a priority over Harrow’s deed from Cole, which was recorded March 11, 1845?

If the attachment had never been dissolved, and if the record showed clearly that the judgment was rendered in favor of the plaintiffs in the attachment suit, we could at once answer this question in.the affirmative. But as it is* there are two -reasons why a negative answer must be given.

1. The order of the district court dissolving the writ of attachment, vacated the attachment -lien. This principal was decided by this court in Brown v. Harris, 2 G. Greene, 505. In that case, it was held that an attachment is vacated by a judgment of non-suit; and that where a non-suit is set aside, and a new trial granted, the attachment lien vacated by the nomsuit, is not revived. That decision we think clearly settles the case at bar.

Prom the moment the attachment was dissolved, the lien created by it was necessarily vacated, and the property released from the custody-of the law. The order to dissolve was made by competent authority ; it was unconditional; it placed upon record the fact that the land was released from the attachment incumbrance, and it remained as a final decision of the court, without any effort to change or disturb it, from April, 1845, till the writ of error was sued out in 1847.

2. The lien was not only discharged by the unconditional dissolution of the attachment; but it was also conditionally removed by the judgment which was rendered against the plaintiffs on demurrer. Plaintiffs obtained! leave to amend their declaration within sixty days. If they neglect to amend within that time, the judgment would be final against them; the condition upon quashing the attachment would be removed and the lien discharged. The record does not show that any amendment was mad© or amended declaration filed. Hence, upon that point also the lien might be regarded as dismissed. In Suydam v. Huggeford, 23 Pick. 465, a judgment was entered in favor of the defendant on a feigned demurrer and it was held that such a judgment dissolved the attachment.

Over three years had elapsed before the judgment dissolving the attachment in the present case was reversed. During that period, there was nothing of record to show that this attachment proceeding could in any way operate as a lien upon the land in question. Appearing free from incumbrance, the land may have passed from one innocent purchaser to another, who, in the assurance of a perfect title, may have made costly improvements upon the property. If by reversing such a judgment the attachment lien should be revived and made to operate ab vnitio, it would often result in gross injustice and irreparable injury to third parties. To avod such results, the right of attaching creditors should be governed by strict law, and if a creditor loses a priority of lien, either by negligence or want of regularity, he must abide the consequences, of his want óf legal delinquency.

If in the attachmeut suit, the plaintiffs had at once taken exceptions to the decision, and had promptly taken it by writ of error to the supreme court, it might have been regarded as a suspension of the final decision upon the dissolution of the attachment, or as a continuance of that decision for the action of the supreme court. Such vigilance appearing of record, would be notice to all, that the decision was not' to be considered final and might therefore without prejudice: to third parties be adjudged as a continuance of the lien.

H. B. Hendershott, for plaintiffs in error.

Geo. C. Wright and W. H. Bennifield, for defendant.

Governed as we should be in such cases by strict rules of law, there is another serious objection to the decision below in this case. It appears that the sheriff's sale, at which Lyon purchased, was authorized by a judgment confessed in the case of H. P. Graves v. E. Cole several months after Cole regularly deeded the land to Harrow. Now, the attachment was sued out in a case with other and different plaintiffs, viz: H. P. Graves agent for Seth Richards & Co. v. Cole. If there are two different suits as might be inferred from the record, it is obvious that the latter could not be benefitted by the attachment in the former suit.

On the whole, we are clearly of the opinion that the lien in the attachment suit was lost, by the decision dissolving the writ, that it was not revived against third person by the reverse decision in the supreme court, and consequently, that Harrow’s deed from Cole has priority over Lyons’ sheriff deed.

Judgment reversed.  