
    PORTER v. DAVIDSON, Sheriff.
    (Circuit Court of Appeals, Fourth Circuit.
    May 28, 1895.)
    No. 109.
    Afpead — Interlocutory Order.
    An order made in an action of claim and delivery, under the North Carolina Code, directing certain chattels which have been taken by the marshal from the possession of a sheriff, upon a requisition to replevy them, to be returned to such sheriff, is not a final order, and is not reviewablc.
    In Error to the Circuit Court of the United States for the Western District of North. Carolina.
    This was an action of claim and delivery by Henry Kirk Porter against L. W. Davidson, sheriff of Cherokee county, N. C. The circuit court made an order directing certain replevied chattels to be returned to the defendant. 62 Fed. 626. Plaintiff brings error.
    Affirmed.
    Julius C. Martin, on brief for plaintiff in error.
    R. L. Cooper and M. W. Bell appeared on record for defendant in error, but filed no brief, nor appeared to argue the case.
    Before FULLER, Circuit Justice, GOFF, Circuit Judge, and SEYMOUR, District Judge.
   SEYMOUR, District Judge.

The plaintiff in error, who was also plaintiff below, is mortgagee of certain chattels in the possession of George Porter & Co., mortgagor, after condition broken. The defendant, the sheriff of Cherokee county in North Carolina, had seized and held the chattels under warrants of attachment issued out of ihe courts of North Carolina against the mortgagors. Pending the suits in which the attachments were issued, the plaintiffs in error brought their action of claim and delivery in the circuit court of the United States for the Western district of North Carolina, and, pursuing the state practice, they executed the proper undertaking; and the marshal of the circuit court took the chattels from the possession of the sheriff, and delivered them to the plaintiff. Thereupon the defendant below moved to dismiss the summons and complaint and the action. These motions the court denied, hut ordered that the chattels taken by the marshal be returned to the defendant sheriff. Plaintiff, having duly excepted to this order, brings his writ of error to this court.

The-learned judge who delivered the opinion of the circuit court assigned as the reason for his order the fact that the chattels in question had been seized by the sheriff by virtue of the process of the state court, and were therefore in the custody of that court, and not liable to be taken therefrom by process of the United States court. The order is evidently not a final decision of the cause, and is therefore not reviewablc. As was stated in the opinion of the judge below:

“The proceeding of the plaintiff in this-: case, by which he took from the possession of the sheriff the chattels levied on, was ancillary, — not in any way affecting the merits of the original case. That can go on without conflicting with any of the cases quoted above.”

Appeal dismissed.  