
    Charlestown.
    Ramsburg, Miller & Co. v. Erb.
    Decided August 28, 1880.
    (Absent Moobe, Jubue.)
    1. Where the claimant of a fund, attached in the hands of a garnishee upon an attachment sued out in a cause at law, files his petition, _ claiming said fund under the provisions of the twenty-fourth section of chapter one hundred and six of the Code of this State, and the parties by consent entered of record waive the right to have a jury, and submit the whole matter of law and fact to the court, to be heard and determined by the court, and the court renders judgment dismissing such petition, the Appellate Court, when the evidence given before the court below does not appear in the record as a part thereof by bill of exceptions, or is not made a part of the record by the court below in some other manner recognized by law as sufficient, „will generally presume that such judgment of the court below is right.
    2. The fact, that depositions taken prior to the hearing and decision of the court below in such a ease to be read as evidence at the trial are found among the papers of the cause and copied into the record by the clerk, is not sufficient to authorize the Appellate Court to consider such depositions as having been given in evidence before the court below.
    3. In such a case the usual and safest practice is to make the evidence a part of the record.by bill of exceptions, but it is perhaps not the only mode. See opinion.
    4. When the judgment of, and action of the court below is definite, and intelligibly presented in the record and does not appear from the record tfi be wrong,, it is presumed to he right.
    
      Writ of error to a judgment of the circuit court oí the county of Jefferson, rendered on the 1st day ot November, 1877, in an action at law in said court then pending, wherein Ramsburg, Miller & Co. were plaintiffs, and Christopher Erb was defendant, allowed upon the petition of Theodore A. Erb, trustee, and others.
    Hon. John Blair IToge, late judge of the second judicial circuit, rendered the judgment complained of.
    The facts of the case are fully stated in the opinion of the Court.
    This case was heard with the preceding case under which the names of counsel and the authorities by them cited appear.
   Haymond, Judge,

delivered the opinion of the Coutt

It appears that on the 16th day of August, 1877, Ramsburg, Miller & Co., brought their action of debt against Christopher Erb in the circuit court of the county of Jefferson, in which they demanded $185.00 with interest from the 1st day of August, 1874. The summons in the action was returnable to September rules, 1877, and seems to have been duly executed. The declaration was filed at September rules, 1877. Such proceedings were afterwards had in the cause, that after-wards on the 1st day of November, 1877, the plaintiff in said action recovered a judgment in said court against the defendant therein for the sum of $221.07 with interest thereon from the 1st day of November, 1877, until paid and their costs of suit. It also appears that an order of attachment was issued by the clerk of said court against .the estate of the defendant in said action, returnable to the next term of said court, and Childs, McCreight & Co. ■were summoned as garnishees. On the 20th day of November, 1877, said Childs, McCreight & Co. filed their answer in writing, as garnishees, in which they answer, that there is in their hands the sum of $949.85 of the attached funds of the defendant, Christopher Erb ; and on motion of the plaintiffs the court ordered, that the garnishees pay over said fund to the general receiver, to ' await the order of the court in the cause oí Ramsburg, Koogle & Co. against said Christopher Erb.

On the 30th day of October, 1877, it appears Theodore A. Erb, trustee, on behalf of himself and Levi D. Mans and Mary E. Erb, by leave of the court filed a petition claiming the fund attached. In said petition it is claimed, that the absolute property in the fund attached in the cause was in the said trustee by virtue of a deed of trust recorded in Clark county, Virginia. An official copy of said deed of trust is filed with said petition, as an exhibit, marked “A.” The deed of trust appears to be dated the 1st day of June, 1877; and by it C. Erb conveys to T. Erb his growing crops of wheat and corn on his farm in Clarke county, Virginia, on which he resides, &c., in trust to secure the interest due and in arrear on his bond to Levi D. Mans, for the sum of $2,000.00, and next to secure to Mary Ellen Erb the sum of $200.00, with interest from November, 1877, and $450.00 with interest from the 1st day of April, 1877. The deed of trust appears to have been recorded in the clerk’s office of the county court of Clarke county, Virginia on the 2d day of June, 1877.

It appears by the record, that on the 24th day of October, 1878, the said court made and entered the following order and judgment in the cause, viz: “This cause having come on for trial on the petition of Theodore A. Erb, trustee in behalf of himself and Levi D. Mans and M. E. Erb, claiming the fund attached in the above cause, and both parties having waived a jury and submitted the matter to the court, and the same being argued, the court took time to consider of its judgment, and now having maturely considered the same, it is ordered that the petition of Theodore A. Erb, trustee in behalf of himself and Levi D. Mans aud Mary E. Erb, be dismissed, so far as the interest of the plaintiffs, Ramsburg, Miller & Co., acquired bjr virtue of their attachment on the fund in controversy is concerned ; and the general receiver of this court, George A. Porterfield, is directed, out of the funds in his hands to the credit of this suit, to pay to Ramsburg, Miller & Co., or George M. Beltz-hoover, their attorney, the sum of $221.07 with interest on same from November J, 1877, and their costs in this behalt expended, being the amount of the judgment heretofore recovered in this case against the defendant, Christopher Erb.

To this judgment of said circuit court the said Theodore A. Erb, trustee, and said Levi D. Mans and M. E. Erb have obtained a writ of error from this court; and in this way the said judgment has been brought before this court, for review. The opinion of this court in the said case of Ramsburg, Koogle & Co. v. Christopher Erb, in which the said Theodore A. Erb, Levi D. Mans and M. E. Erb are plaintiffs in error, supra, fully covers the points raised before us in this case. The questions raised and decided by us in that case are the same as in the case at bar. And I deem it unnecessary to do more in this opinion than to refer to said opinion of the court delivered and filed in the above named case.

For the reasons set forth in the opinion in the above named cause of Ramsburg, Koogle & Co. aforesaid the said judgment of the circuit court of the county of Jefferson, rendered on the 24th day of October, 1878, must be affirmed with costs and $30.00 damages to the defendants in error, Ramsburg, Miller & Co. against the plaintiffs in error, Theodore A. Erb, Levi D. Mans and Mary E. Erb.

Judges JOHNSON and Green Concurred.

Judgment Affirmed.  