10 Utah 346 | Utah | 1894
This is a case in which one attachment creditor of the defendant corporation claims a lien on the property superior to . that of another such creditor. It appears from the record that on January 8, 1894, the Zion’s Co-operative Institution brought an action against the South Jordan Co-operative Mercantile Institution to recover the sum of $1,893.19, and levied, through the United States marshal, a writ of attachment upon a stock of merchandise in the defendant’s possession. On January 11, 1894, judgment was entered in favor of the plaintiff and against the defendant. On January 12, 1894, the appellants commenced an action against the same defendant to recover $570.70, and by the same officer attached the same merchandise. After judgment had been rendered for the plaintiff in the first action, and suit had been brought by the appellants, it was discovered that a mistake in the name of the defendant had been made in both actions, by omitting the words “ & Manufacturing ” after the word “Mercantile,” and before the word “Institution.” On January 15, 1894, the appellants filed an amended complaint, so as to correct the error caused by the omis"sion, and on the next day levied an alias writ of attachment on the same goods by the same officer. On January 17, 1894, the plaintiff in the first action, by consent and agreement in open court of all parties to that action, and
The only material question raised is whether the appellants, under the facts and circumstances apparent from the record, have a paramount lien on the funds in the hands of the officer. It is contended by counsel for appellants that there was an attempt to substitute a new defendant after judgment, and that neither at the time of the amendment, nor at the hearing of appellants' motion to apply the money in satisfaction of their judgment, was there any evidence introduced to show the identity of the South Jordan Co-operative Mercantile Institution and the South Jordan Co-operative Mercantile & Manufacturing Institution. If there was any doubt on the point of identity, such doubt would seem to have been removed by the affidavit of one of the counsel for the appellants, as shown by the record, a portion of which reads as follows: “Affiant further states that there is no such corporation as South Jordan Co-operative Mercantile Institution, but that the true name of the corporation whose property was attached herein was and is South Jordan Co-operative Mercantile & Manufacturing Institution.” This is plain and to the point, and agrees perfectly with the amendment.
We are of the opinion that the amendment in this case was not fatal to the lien of the first attachment creditor, that his lien is paramount to that of the appellants, and that the court did not err in its ruling. The judgment is affirmed.