
    Mary J. Mitchell, et al. v. Thos. Ruckland.
    Attachment Only Sustained by Proof.
    Where an attachment is issued and levied, and the grounds of attachment are controverted, in the absence of any proof to sustain it, the trial court must discharge the attachment.
    
      APPEAL FROM WASHINGTON CIRCUIT COURT.
    December 3, 1885.
    
      W. E. & S. A. Russell, for appellants.
    
    
      W. C. & C. C. McChord, for appellee.
    
   Opinion by

Judge Pryor:

The appellants in this case have recovered a judgment for the entire amount of their claim against the appellee, and upon that judgment an ordinary execution may issue. Whether or not the homestead is liable for the' debt is not a question involved in this case.

The appellee, it is true, claims that his homestead can not be attached or sold under the proceeding against him; still this defense was made when the attachment was issued and levied. The appellants had no lien on the land except such as was acquired by the levy of the attachment, and the grounds of the attachment being controverted and there being no proof whatever to sustain them, there was nothing left for the court below to do but to discharge the attachment, and refuse to sell the land for the reason that no lien existed upon it in any way.

Judgment below is therefore affirmed.  