Philips, P. J.
This is an action against the sheriff of Harrison county, Thomas J. Barker, and the sureties-on his official bond, to recover damages for the alleged wrongful levy of a writ of attachment on the property of plaintiff.
In the attachment suit the plaintiff interpleaded, and on the trial of the issues therein, the plaintiff prevailed. After this the plaintiff brought this action to [491]*491recover the damages consequent upon the wrongful taking and detention of Ms property. At the trial the defendant sought to prove that the plaintiff was not the owner of the property, in fact. This evidence was excluded, on the ground that the defendant was concluded by the recovery of the plaintiff in said action of inter-plea.
Plaintiff had judgment, to reverse which this appeal is prosecuted. The only question, therefore, for our determination is as to the correctness of the ruling of the circuit court.
I am of opinion that the judgment on the inter-pleader in the attachment suit is, in this action, conclusive, as to the plaintiff’s ownership of the property in question. The proceeding of interpleader, in the action of attachment, is somewhat sui generis. It is solely the creature of the statute. It is defined by our supreme court (in Burgert v. Borchert, 59 Mo. 80), to be in the nature of an action of replevin, ingrafted on a suit by attachment. Its very office and purpose are to determine the question of ownership of the specific chattel, and the right of the sheriff to seize and hold it under his writ. It is so much a substitution for the action of replevin, that, after its judicial determination, the in-terpleader cannot resort to the action of replevin for the same property. Being thus a substitution for the action of replevin, it must stand, in contemplation of law, as if it were lodged directly against the sheriff by name.
The sheriff represents the plaintiff in the attachment suit in holding the property as the legal custodian. Whitter v. Fisher, 27 Iowa, 12.
The interpleader “became substituted for the original defendant, and, therefore, a party to the action.” Whitter v. Fisher, 27 Iowa, 12. Of consequence, the officer, who stands as if the action of replevin were against him must be bound by the adjudication. It is no answer to this to say that the sheriff is not, eo f.nomine, a party to the record, wdthout the power to call [492]*492witnesses and take an appeal. General rules must cease to operate where the reason on which they stand no longer exists. They must yield to substance, and the spirit of the law. A person, not a party to the record, for whose real benefit an action is prosecuted, or who hires counsel, and testifies in the case, and directs the course of trial, or otherwise concerns himself in the matter, may be as much bound by the result of the suit as if he were named as a party, although he may not be in a situation to take an appeal. Landis v. Hamilton, 77 Mo. 555; Conger v. Chilcote, 42 Iowa, 18.
Take the case of a judgment in favor of the inter-pleader. The judgment is, that the property is his, and that he recover possession of the same. The sheriff is not a party, by name, to the record. Suppose he should, when called on by the interpleader for the goods, after judgment, refuse to surrender them, or not have them on hand, or the proceeds, would it be any defence to an action against him and his bondsmen to say that he was not bound by that judgment? Upon what principle rests the binding force of that judgment in such case, on the sheriff, different from the one here presented? It must rest upon the principle that the sheriff is the ministerial officer of the court, and that the property held by him is in custodia legis. It is constructively in the court. The sheriff is an officer, and a part of the court. The property is the res, the very thing on which the judgment operates; more peculiarly so in the action of replevin, for, as held by this court in Spooner v. Ross, (24 Mo. App. 599), the judgment in favor of the interpleader operates alone upon the property or its proceeds in the hands of the sheriff. It is for this reason "that the supreme court holds that the verdict on an in-terplea must be for the attached property, and not a money verdict for its value. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 637.
As is said, in effect, in Lenoir's Adm’r v. Wilson 136 Ala.), the statute gives the owner of property,. [493]*493seized under the writ of execution against another, the privilege, by interplea, of arresting the proceedings against his property, until there shall be a judicial ascertainment of the liability of the property to the execution. The plaintiff, at whosé instance, and for whose benefit, the sheriff has taken, and holds, the property, must then litigate with the interpleader the question of ownership, before the sheriff can take another step. The court say: “ The law says to the plaintiff, he cannot proceed further with bis execution against the particular property, until he obtains a judgment of condemnation. The object of the suit is to remove the obstacle in the way of the proceeding against the property, and to establish its liability.”
Why is it that the interposing of the interplea suspends the right of the sheriff to take another step in the matter, if he is not likewise, finally and forever, concluded by the judgment therein? If, as said by the court {supra), it is “a judgment of condemnation,” it must bind the property before the court, in the hands of the officer, who is but the legal custodian in and before the court, with the res. The judgment in favor of the interpleader prevents the court itself from diverting that property to other direction. It would be a, singular curiosity of the law, if that judgment, while binding the court itself, did not likewise forever conclude the ministerial officer of that court, who held the property subject to the result of the trial of the right of property.
Again, it is uniformly held, that if, on the trial of the interplea, the issue be found against the inter-pleader, this estops him from maintaining an action of trespass against the officer for wrongfully seizing the property. Abbey v. Searles, 4 Ohio St. 598; Bray v. Saaman, 13 Neb. 518; Krenchi r. .Delder, 50 Ill. 177. If the judgment in favor of the interpleader does not conclusively establish his ownership, as against the parties to the attachment suit, and the sheriff who holds the property in court, upon what principle is the sheriff [494]*494allowed to plead in bar an adverse finding against the interpleader when sued for the taking? The sheriff was not a party in name to the proceeding in the one case any more than in the other. What becomes of the fundamental rule of the doctrine of estoppel, that a judgment admissible as a bar must estop both parties ? As said in McDonald & Qo. v. Gregory (41 Iowa, 516): “Both litigants must be concluded, or the judgment cannot be set up against either.” Greenleaf Evid., sect. 529.
I can neither perceive the logic nor justice of the rule that would permit the sheriff, when sued for taking my goods, to plead in bar an adverse finding by the jury against my claim as an interpleader, and yet would permit the sheriff to ignore a finding if in my favor. The law should admit of no such contradiction and absurdity in administering justice. Equality of right is equality before the law.
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Philips, P. J.
This is an action against the sheriff of Harrison county, Thomas J. Barker, and the sureties-on his official bond, to recover damages for the alleged wrongful levy of a writ of attachment on the property of plaintiff.
In the attachment suit the plaintiff interpleaded, and on the trial of the issues therein, the plaintiff prevailed. After this the plaintiff brought this action to [491]*491recover the damages consequent upon the wrongful taking and detention of Ms property. At the trial the defendant sought to prove that the plaintiff was not the owner of the property, in fact. This evidence was excluded, on the ground that the defendant was concluded by the recovery of the plaintiff in said action of inter-plea.
Plaintiff had judgment, to reverse which this appeal is prosecuted. The only question, therefore, for our determination is as to the correctness of the ruling of the circuit court.
I am of opinion that the judgment on the inter-pleader in the attachment suit is, in this action, conclusive, as to the plaintiff’s ownership of the property in question. The proceeding of interpleader, in the action of attachment, is somewhat sui generis. It is solely the creature of the statute. It is defined by our supreme court (in Burgert v. Borchert, 59 Mo. 80), to be in the nature of an action of replevin, ingrafted on a suit by attachment. Its very office and purpose are to determine the question of ownership of the specific chattel, and the right of the sheriff to seize and hold it under his writ. It is so much a substitution for the action of replevin, that, after its judicial determination, the in-terpleader cannot resort to the action of replevin for the same property. Being thus a substitution for the action of replevin, it must stand, in contemplation of law, as if it were lodged directly against the sheriff by name.
The sheriff represents the plaintiff in the attachment suit in holding the property as the legal custodian. Whitter v. Fisher, 27 Iowa, 12.
The interpleader “became substituted for the original defendant, and, therefore, a party to the action.” Whitter v. Fisher, 27 Iowa, 12. Of consequence, the officer, who stands as if the action of replevin were against him must be bound by the adjudication. It is no answer to this to say that the sheriff is not, eo f.nomine, a party to the record, wdthout the power to call [492]*492witnesses and take an appeal. General rules must cease to operate where the reason on which they stand no longer exists. They must yield to substance, and the spirit of the law. A person, not a party to the record, for whose real benefit an action is prosecuted, or who hires counsel, and testifies in the case, and directs the course of trial, or otherwise concerns himself in the matter, may be as much bound by the result of the suit as if he were named as a party, although he may not be in a situation to take an appeal. Landis v. Hamilton, 77 Mo. 555; Conger v. Chilcote, 42 Iowa, 18.
Take the case of a judgment in favor of the inter-pleader. The judgment is, that the property is his, and that he recover possession of the same. The sheriff is not a party, by name, to the record. Suppose he should, when called on by the interpleader for the goods, after judgment, refuse to surrender them, or not have them on hand, or the proceeds, would it be any defence to an action against him and his bondsmen to say that he was not bound by that judgment? Upon what principle rests the binding force of that judgment in such case, on the sheriff, different from the one here presented? It must rest upon the principle that the sheriff is the ministerial officer of the court, and that the property held by him is in custodia legis. It is constructively in the court. The sheriff is an officer, and a part of the court. The property is the res, the very thing on which the judgment operates; more peculiarly so in the action of replevin, for, as held by this court in Spooner v. Ross, (24 Mo. App. 599), the judgment in favor of the interpleader operates alone upon the property or its proceeds in the hands of the sheriff. It is for this reason "that the supreme court holds that the verdict on an in-terplea must be for the attached property, and not a money verdict for its value. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 637.
As is said, in effect, in Lenoir's Adm’r v. Wilson 136 Ala.), the statute gives the owner of property,. [493]*493seized under the writ of execution against another, the privilege, by interplea, of arresting the proceedings against his property, until there shall be a judicial ascertainment of the liability of the property to the execution. The plaintiff, at whosé instance, and for whose benefit, the sheriff has taken, and holds, the property, must then litigate with the interpleader the question of ownership, before the sheriff can take another step. The court say: “ The law says to the plaintiff, he cannot proceed further with bis execution against the particular property, until he obtains a judgment of condemnation. The object of the suit is to remove the obstacle in the way of the proceeding against the property, and to establish its liability.”
Why is it that the interposing of the interplea suspends the right of the sheriff to take another step in the matter, if he is not likewise, finally and forever, concluded by the judgment therein? If, as said by the court {supra), it is “a judgment of condemnation,” it must bind the property before the court, in the hands of the officer, who is but the legal custodian in and before the court, with the res. The judgment in favor of the interpleader prevents the court itself from diverting that property to other direction. It would be a, singular curiosity of the law, if that judgment, while binding the court itself, did not likewise forever conclude the ministerial officer of that court, who held the property subject to the result of the trial of the right of property.
Again, it is uniformly held, that if, on the trial of the interplea, the issue be found against the inter-pleader, this estops him from maintaining an action of trespass against the officer for wrongfully seizing the property. Abbey v. Searles, 4 Ohio St. 598; Bray v. Saaman, 13 Neb. 518; Krenchi r. .Delder, 50 Ill. 177. If the judgment in favor of the interpleader does not conclusively establish his ownership, as against the parties to the attachment suit, and the sheriff who holds the property in court, upon what principle is the sheriff [494]*494allowed to plead in bar an adverse finding against the interpleader when sued for the taking? The sheriff was not a party in name to the proceeding in the one case any more than in the other. What becomes of the fundamental rule of the doctrine of estoppel, that a judgment admissible as a bar must estop both parties ? As said in McDonald & Qo. v. Gregory (41 Iowa, 516): “Both litigants must be concluded, or the judgment cannot be set up against either.” Greenleaf Evid., sect. 529.
I can neither perceive the logic nor justice of the rule that would permit the sheriff, when sued for taking my goods, to plead in bar an adverse finding by the jury against my claim as an interpleader, and yet would permit the sheriff to ignore a finding if in my favor. The law should admit of no such contradiction and absurdity in administering justice. Equality of right is equality before the law.
There is no hardship in the rule, as contended for by me, on the sheriff. He is presumed to know the law. He knows, when he seizes property under the writ of attachment, that in his hands it is subject to the proceeding by interplea. It is to his interest, and of all concerned, that the rights of property should thus be determined in advance of the sale. He knows that the form of action, thus allowed by the statute, takes the place and performs the office of the action of replevin, which the claimant otherwise might institute against him by name ; and that the judgment should conclude him as effectually as if it were rendered in the action of replevin. Having seized the property he must look after his liability as a trespasser and watch' such trial in court, where he has brought the property. He cannot change the rights of the owner of the property, nor his legal status once fixed by the seizure, by going out of office voluntarily or otherwise. His successor in office was his deputy, and the very officer who made the levy. He must answer for the act of his deputy in making it. [495]*495If this officer be not concluded by the judgment on the interplea, the statute providing for the proceeding would be a practical failure ; and it would be false to say that it is the action of replevin ingrafted upon the proceeding in attachment, because it would not perform the same function, nor be followed by the same legal incidents.
In my opinion the circuit court ruled correctly on this point, and the judgment should be affirmed. It is so ordered.
Hall, J., concurs; Ellison, J., dissents.