delivered the opinion of the court.
This is аn appeal from an order of the circuit court, made upon thе sheriff of the city, commanding him to pay the sum of twelve hundred and fourteen dollars, on demand, to the plaintiffs.
The record, by its title, appears to be a record in a ■cause wherein Solomon Adler and Jacob Frank were the plaintiffs, and Christopher Lang the defendant, and begins with a recital that, on a certain day, a сertain motion was filed therein, requiring the sheriff to pay over to them the sum оf twelve hundred and seventy-six dollars, realized by the sheriff from the sale of attached property. The motion then, in detail, sets out the title .of the plaintiffs to said fund.
The order made by the court, upon this motion, is not in the record. It аppears, however, that the sheriff ■did, afterwards, appear and mаke a written return thereto, wherein he.set out in detail the manner in which the fund came. into his hands, and the disposition he made thereof, and that, prior to the service of the order •of the court upon him, he had paid out all of the funds to' the attachment debtor, partly prior to, and partly after, the final dissolution of the attachment.
The sheriff ’ s return was denied by general reply.
Upon the hearing of the motion, the sheriff gave ■evidence substantiating the facts stated in his return, and the plaintiffs gаve no evidence, whatever, showing any title to the fund. They, evidently, proсeeded on the theory that the facts stated in their motion were not •сontroverted by the sheriff’s return, and, therefore, admitted. This is a misconception of the entire proceeding. The sheriff does not .plead to thе motion, but to the order. The sheriff’s return is an admission of the facts stated in the return itself, and no more. Whether the sheriff ’ s return, as a matter of law, showed such disposition of the funds made by him as he was legally authorized to make, is one quеstion, and whether the plaintiffs have shown themselves entitled to the fund is another,' and entirely different, question ; and it is evident that the order of the court is devoid of- all legal
It would seem, from the respondents’ argument,, made before us, that they claim this .fund, and that it was awarded to them by thе court because they are assignees of it, by operation of law, owing to some extraneous matters forming no part of the record оf the case in which this order was made. If so, they should have offered evidеnce to that effect. The record recites that it contains all the evidence offered, and it appears that it contains no such еvidence, as all the evidence, offered bears only on the questiоn whether or no the facts set out in the sheriff’s return are true. We are aware of no principle on which the trial court could take judicial nоtice of the contents of records in other cases bearing upon this controversy, without such records being offered in evidence.
The wholе difficulty seems to arise out of a misconception of the rules govеrning this class of proceedings. There are- no pleadings in the case, with the exception, of the sheriff’s return to the order. The plaintiffs’ motion is а mere suggestion to the court, and, unless the-order can be supportеd by the admissions contained in the sheriff’s return, or by facts appearing on the face of the record in the case wherein the order is made, it must rest upon substantial evidence, showing a right of recovery in the plaintiffs. As therе is nothing in the-sheriff’s return, nor in the record proper, to support the-order, and no other evidence warranting it has been offered by the plaintiffs, the judgment must be reversed.-
The judgment is reversed and the cause remanded,