2 FEDERAL REPORTER.
original suit had remained undetermined, and was likewise with this
. removed to this court.
The case of Bank v. Turnbull, 16 Wall. 190, seems to control this
case. The practice in Virginia, it*is true, is somewhat different from
that in our state, as there the claimant intervenes in the suit and
gives two different kinds. of bonds, and here he nles an alhdavit and
gives but one kind of bond; but in all other respects it seems to be
very similar to ours, and the reasoning of the court in that case is ap-
plicable to our own, and it seems to me that I ought to be bound by
that decision and decide this case. in accordance therewith. The
court, in that case, say: V
"Conceding it to be a suit and not essentially a motion, we think it was
merely auxiliary to the original action,—a graft upon it, and not an independ-
ent and separate litigation. A judgment had been recovered in the original
suit, final process was levied upon the property to satisfy it, the property was
claimed by Turnbull & Oo., and this proceeding, authorized by the laws of
Virginia, resorted to to settle the question whether the property ought to be
so applied. The contest could not have arisen but for the judgment and exe-
cution, and the satisfaction of the former would have at once extinguished
the controversy between the parties. The proceeding was necessarily insti-
tuted in the court where the judgment was rendered and whence the execu-
tion issued. No other court, according to the statute, could have taken juris-
diction. It was provided to enable the court to determine whether its process
had, as was claimed, been misapplied, and what right and justice should be
done touching the property in the hands of its officer. It was intended to en-
able the court, the plaintiff in the original action, and the claimant, to reach
the final and proper result,—a process at once speedy, informal, and inexpen-
sive. Thnt it was only auxiliary and incidental to the original suit is, we
think, too clear to require discussion."
See also authorities cited by the court.
The case of Poole v. Thatcherdeft, 19 Finn. Bar. 49, (Circuit Court,
D. Minnesota, December 13, 1883,) has been also cited` in sup-
port of the motion to dismiss in this case, and seems also to bein
— point. The case now before me is one where a judgment having
been rendered some years since in the State district court of Bowie
county, Texas, in favor of these plaintiffs, Flash, Lewis & Co., and
against one A. Bruhn, and an execution having been levied upon per-
sonal property, the same was claimed by H. J. Dillon, and affidavit
and bond nled, and returned with the execution and inventory and
appraisement of the property levied upon in the possession of the de-
fendant in the execution. After which the plaintiffs in the execution
remove their cause against H. J. Dillon, claimant, before the trial of
the right of property, to this court. The clerk, it is true, certifies up
a copy of all the proceedings in cases No. 1,654 and No. 1,956, (Flash,
Lewis at Co. v. A. Bruhn, Defendant, and Flash, Lewis et C0. v. H.
J. Dillon, Claimant,) from which it appears that the judgment in the
original case was rendered September 26, 1877, and that the alias
execution, by virtue of which the levy was made, was dated the
twenty-fourth day of January, 1882, the first one having been issued