
    Schnur vs. Schnur and another. Appeal of Hickcox.
    
      Clerk of Court. Order on former cleric to pay over money.
    
    1. Money was paid into court by a defendant to keep good an alleged tender, and judgment was ordered for plaintiff on the ground that no sufficient tender had been made; but such judgment was never entered, because the controversy was settled by the parties. On motion of said defendant (with due notice to all parties), and on proof that he was entitled to such moneys as against the plaintiff, the court made an order requiring its former clerk, by whom such money had been received, and not paid over to his successor, to pay the same to the moving party. Held, no error. Sclmur v. Hickcox, 45 Wis., 200.-
    2. Whether the court can enforce its order by attaching its former clerk, not considered.
    APPEAL from the County Court of Milwaukee County.
    
      A sum of money was paid into court iu this action by the defendant Adam Schnur, the respondent in this appeal, to keep good a tender thereof alleged to have been made by him to the plaintiff in satisfaction of the contract in suit. The money was paid to James Hickcox, who was then clerk of the circuit court for Milwaukee county, in which the action was pending.
    The cause was tried, and the trial resulted in a finding that no sufficient tender had been made. Judgment for the plaintiff was ordered, but never entered, the controversy having been settled by the parties.
    On due notice to all parties interested, the respondent moved the circuit court for an order requiring Mr. Hickcox to pay over the money to him, and showed that he Í6 entitled to the money, and that the same is in the hands of Mr. Hickcox. The court so ordered, and Hickcox appealed from the order.
    The cause was submitted on the brief of J. V. V. Platto for the appellant, and that of Murphey <& Goodwin for the respondent.
   LyoN, J.

Schnur v. Hickcox, 45 Wis., 200, was an action on the ofiicial bond of the appellant, as clerk of the circuit court, to recover the money mentioned in the order from which this appeal was taken. The money having been paid into court ■por the plaintiff, it was held, in substance, that there could be no recovery in that action until the court should, upon proper proceedings, adjudicate that it belonged to the respondent, Adam Schnur, instead of the plaintiff. We also indicated the proper practice to obtain an adjudication in that behalf, and the practice thus indicated has been' strictly pursued by the respondent. Moreover, the motion papers show that he is entitled to the money, and that it is in the hands of the appellant. Under these circumstances no good reason is perceived for disturbing the order. Whether the court has authority to attach the appellant for nonpayment of the money, is a question which was not then and is not now "before us, and we intimate no opinion upon iti '

By the Court. — Order affirmed.  