
    Charles Schaeffer, Jesse Wickersham, and C. B. Turner v. Marienthal, Lehman & Co.
    1. Where a judgment is reversed, and the cause remanded for further proceedings, error will lie to reverse the judgment of reversal, while the cause is still pending in the court to which it has been so remanded.
    2. Where personal property has been seized' by the sheriff under writs of attachment, the sheriff and the attaching creditors can not, by virtue of their right under such proceeding, maintain a joint action to recover damages for its subsequent conversion or detention by a stranger.
    3. A verdict finding the right of possession in the defendants, and a judgment of the court, thereupon, that the property be returned to them, in an action of replevin in another state, is only prima facie evidence of property in the defendants, and may be rebutted by showing exclusive property in one of them.
    *Error to the Superior Court of Cinciunati, in general term.
    
      The plaintiffs, Schaeffer and Wickersham, severally, sued out writs of attachment, from the district court of Lee county, Iowa, against the property of one George Nutts, and placed the same in the hands of Turner, the sheriff of said county, for execution. By virtue of these writs, and of similar writs sued out by other creditors of Nutts, certain personal property, claimed by Marienthal, Lehman & Co., was seized by Turner as the property of Nutts. Marienthal, Lehman & Co. replevied the property from the possession of the sheriff, joining Schaeffer and Wickersham as co-defendants with him in the action of replevin, but making none of the other attaching creditors parties thereto.
    The petition in the replevin case charged that said goods and chattels were of the value of $609.59; that they were “wrongfully detained by said defendants” — the present plaintiffs — and “that the same were wrongfully detained by the sheriff of Lee county, state aforesaid, as to Turner, and by plaintiffs in attachment, as toSchaeffer and Wickersham, against the goods and chattels of one George Nutts, ... as the goods of George Nutts.”
    The answer alleged the seizure of the property by virtue of said writs of attachment, and averred that the right of possession thereof was in said sheriff.
    
    On the trial, the jury found “ the right of possession of the property in the defendants,” and the court adjudged “ that defendants recover of plaintiffs the property described in the petition, together with their costs,” taxed at $18.
    No execution was issued on this judgment, and the defendants-in error afterward converted the property to their own use.
    Subsequently to the conversion, the plaintiffs in error made a formal' demand of the property, and then brought a joint action in the Superior Court of Cincinnati against defendants in error, alleging in their petition, substantially, the facts aforesaid, and seeking to recover the value of the property, as well as said $18-costs.
    The defendants answered, denying that there was any such ^record of the recovery of the judgment in replevin in lowa, and admitting all the other facts set forth. They also set up other matters of defense, which were not insisted upon at the-trial.
    The cause was submitted to the court, a jury being waived, and on the trial the proceedings and judgment in the Iowa replevin case were duly proven by an authenticated transcript. But no evidence, except that contained in said record, as aforesaid, was offered to show the value of the property, or any right of the plaintiffs thereto, or to its possession. Nor did it appear what were the several amounts of the debts claimed in the attachment suit, or whether any or either of them was in fact owned by Nutts.
    A bill of exceptions states that certain laws of the State of Iowa were given in evidence, but they do not appear on the record.
    On these facts the Superior Court, in special term, found for the plaintiffs, and rendered a judgment in their favor for the value of the property, as stated in the replevin case, and for the $18 costs, with interest. The same court, in general term, on petition in error of defendants, reversed the judgment, and remanded the cause for further proceeding. And now, while the case is still pending in the court in special term, the present petition is filed here, to reverse the judgment of reversal.
    
      Gr. E. Pugh and W. 8. Burrowes, for plaintiffs in error:
    In the action in the Superior Court, the plaintiffs proved by the Iowa record (1) their right to the possession of the property in ■question, and (2) that the defendants had taken the property into their possession by color of legal process and had not restored it.
    The plaintiffs having shown a formal demand of the property after its conversion and that the defendants did not comply with it, nothing remained to be proved except the value of the right of possession whereof the defendants had deprived the plaintiffs. This was sufficiently and conclusively shown by the Iowa record. The defendants’ petition therein contained specifies the articles and their value. They are ^concluded by that allegation of value, upon the doctrine of estoppel. P. W. & B. R. R. Co. v. Howard, 13 How. 307. Even if the allegation were not conclusive, it was competent as testimony, and, prima facie, sufficient.
    The Iowa judgment remains in force, and, whether founded upon a correct or an incorrect intex'pretation of the statutes of Iowa, is final.
    In truth, however, the judgment of the district coux't of Lee county was in strict and studied pursuance of the decision of the Supreme Court of Iowa (previously announced) in Funk v. Israel, 5 Iowa, 438, 439, 440. And the judgment was affirmed by the Supreme Court on appeal. Marienthal v. Schaeffer, 6 Iowa, 223.
    
      
      We hardly imagine that the Supreme Court of Ohio will disregard the well-established doctrine of Elmendorf v. Taylor, 10 Wheaton, 159, that the decision of the highest court of a state upon the interpretation of the statutes of that state must be taken as conclusive.
    This action is not to enforce the judgment of the Iowa court,, but is what, before the code, would have been called an action upon the case for trover and conversion; the judgment being exhibited in evidence as a muniment of the plaintiffs’ title. But suppose it were: Can the courts of Ohio constitutionally avoid enforcing the judgment ?
    The only excuse for the blunder of the general term is that,, while one of the plaintiffs, Turner, being the sheriff of Lee county, could institute an action of trover against Marienthal, Lehman & Co., and could give in evidence, as conclusive, the judgment of the district court of Lee county, the other plaintiffs had no such right. But the judgment was not in favor of Turner individually: it was in favor of all the present plaintiffs.
    In Ohio, as we have construed our statutes, the replevin of Marienthal, Lehman & Co. would have been brought against the sheriff alone. But such is not the practice in other states. Schaeffer and Wickersham, as the record shows, were the attaching creditors at whose instance the sheriff of Lee county had possession of the articles; and, being such, were proper *parties defendant in replevin. Allen v. Crary, 10 Wend. 349; Knapp v. Smith, 27 N. Y. 277, 278; Ib. 280, 281.
    At all events, the judgment (which is final) declared the right, of possession to be in Schaeffer and Wickersham jointly with-Turner.
    
      Stallo & Kittredge and J. Abraham, for defendants in error:
    1. The petition in error in this case has been prematurely filed. Section 512 of the code (S. & C. Stat. 1099) authorizes this court to-vacate, modify, or reverse “ an order affecting a substantial right in an action when such order in effect determines the action and prevents a judgment.” The case is pending in the Superior Court, and may result in another judgment in favor of the plaintiffs. The order sought to be reversed does not “ determine the action and prevent a judgment.” Herf & Co. v. Schulze et al., 10 Ohio, 263 ; Kelley v. Hunter, 12 Ohio, 216; Longworth v. Sturges et al., 6 Ohio St. 158; Holbrook v. Connelly, 6 Ohio St. 199; Hobbs v. Beckwith, 6 Ohio St. 252-254.
    2. The original judgment in favor of the plaintiffs at special term was manifestly erroneous.
    (1.) The action in the court below was clearly brought to enforce the Iowa judgment. That could be done only as that judgment stands. The Iowa court might have fixed the value of the property and ordered the payment of its value as damages if the order of redelivery was not complied with. The record shows this was not done. The Superior Court of Cincinnati could not properly render a money judgment in favor of the plaintiffs, either on the theory that it was enforcing the Iowa judgment or on the ground that the plaintiffs’ action was one of trover for the conversion of the property. The defendants were bound to deliver the goods only in satisfaction of the Iowa judgment.
    (2.) If the plaintiffs’ action is one of trover, how can it be maintained by the plaintiffs jointly? Schaeffer and Wickersham are the plaintiffs in attachment against Nutts, and Turner was the sheriff. Turner is the only one who held, or ever was entitled to hold, possession of the property.
    (3.) Schaeffer and Wickersham were related to the property in question only through their attachments, and the sheriff *had possession of the property only by virtue of the attachments. The petition does not aver, and the evidence does not show, for what amount the attachments were issued, or for what amount judgment was rendered in the attachment cases, nor, indeed, whether or not those cases ever resulted in a judgment. But the record of the replevin case recites the verdict of the jury: 11 We, the jury, find the right of possession of the property in the defendants.” Now suppose, for a moment, that the present plaintiffs had the right to recover against the present defendants in the case at bar, what was their measure of damages? Clearly not the value of the property, for the Iowa jury did not find the right of property in the defendants in replevin. The measure of damages evidently was the amount of the claims of Schaeffer and Wickersham against Nutts on the attachment and the costs. Jennings v. Johnson, 17 Ohio, 154; Sutcliffe v. Dohrman, 18 Ohio, 181, 187.
    .Even of the value of the property there was no evidence. There was an irrelevant and unnecessary allegation of the value of the property at the time of the replevin, in the petition of Marienthal, Lehman & Co., which had been sworn to by their attorney; but that related to a time long anterior to the judgment of the Iowa court for the return of the goods, and a number of years anterior to the alleged demand for the goods.
   Welch, J.

The first question in the case is, whether the petition in error has not been prematurely filed, pending the original action in the court below.

Where, under the statutory provision in that behalf, a cause is set down for trial on its merits, after reversal of the judgment of a justice of a peace therein, it is well settled that error will not lie until after the final disposition of the case. Kelly v. Hunter, 12 Ohio, 216 ; Wright, 418. But where a cause is remanded for further proceedings under the code, the practice, so far as we know has always been to allow a proceeding in error at any time after the rendition of the judgment of reversal, and without regard to the further proceedings below. See 4 Ohio St. 483, 586, 354, and 3 Ib. 445. *The alleged inconvenience arising from this practice can be obviated by a continuance of the ease below until the proceeding in error is terminated, and then dismissing it or proceeding in it, according to the final result in the reviewing court.

But did the court in general term err in reversing the judgment in special term ? We think not.

It is enough, perhaps, to say that the plaintiffs were permitted to recover in their joint names, as in an action of trover, the full value of goods and chattels in which they had no joint property, either general or special, and in whicn only one of them had any property at all. If counsel are right in arguing that the verdict and judgment in the replevin case are conclusive evidence of the plaintiffs’ right of joint possession, and therefore prima facie evidence of joint ownership, surely that prima facie case is rebutted by the showing of the plaintiffs themselves. In their original petition, as well as in their answer in the' replevin case, they show that two of the plaintiffs have no rights but those of attaching creditors, and that the sheriff (or the defendant in attachment) has the exclusive right of property. Such a right of possession would be of merely nominal value, and could not, under any circumstances, justify a recovery for the full value of the property.

But does the Iowa record show any such right of joint possession? Taken altogether, does it not rather show that the sheriff has the exclusive right ? I think it does. Or, at least, if it is to be construed as showing any right of possession in Schaeffer and Wicker-sham, it must, in order to make the record consistent with itself, be regarded as a mere right to receive and hold the property for the sheriff, and as his servants. The answer of the plaintiffs in the replevin case, like their original petition in the Superior Court, plainly avers the right of possession to be in the sheriff alone; and it would-be quite absurd to hold that the Iowa court and jury meant to award them a right of possession which they disavowed.

Counsel suggest that the case may be sustained as an action brought to enforce the Iowa judgment.. As to the $18 costs-*this is true. ' But as to the property, instead of being an action to enforce the judgment, by compelling delivery of the specific property, it is an action to recover damages for its conversion, and the judgment is merely given in evidence to showiiife in the plaintiffs.

That the officer might sue alone for the conversion of the property, I have no doubt. The judgment in replevin can not be held as a bar to such an action, for it only determined the then present right of possession, and not the right of property, or to damages for its conversion. ■ But surely the creditors themselves can not join him, and much less can a part only of the creditors join him in such an action. If they can, how shall they and the sheriff divide between them the money recovered, and what will be the rights of the other creditors and of the defendant in attachment? It seems only necessary to ask these, and similar questions, to show that the action was misconceived.

Judgment of the court in general term affirmed.

Day, C. J., and White, Brinkerhoee, and Scott, JJ., concurred.  