that it has been paid, and the obligation evidenced thereby canceled. But the respondent, because of this payment, claims to be subrogated to the rights of the payee of the note, and brings suit as the indorsee thereof. Can he recover in this form of action? Upon the failure of the appellant to pay the debt at the time it became due, the respondent became liable therefor to Dooley & Co. as a joint original promisor, according to the terms of the contract. He therefore, upon his payment of the debt, can rely upon a promise implied by law for its repayment to him by his principal, the defendant in this action; his payment was not voluntary, but one he was obliged to make one which the law would enforce against him, with costs of suit. The payment of the debt named in the contract, upon an implied request of the defendant, and the promise implied by law of repayment, give him a right of action against the respondent for money paid to the use of the respondent; and this is the remedy upon which he should rely. We know of no rule or principle of law which authorizes the plaintiff, even though he be surety for his co-maker, to bring suit against his co-maker and principal as an indorsee of a promissory note that has been paid. No authority has been cited, and we have found none, authorizing this mode of procedure: 1 Parsons on Contracts, 5th ed., 470; Wright v. Carlinghouse, 26 N. Y. 539; Norton v. Coons, 3 Denio, 130; Gibbs v. Bryant, 1 Pick. 118. For this reason the case is reversed and remanded. HUNTER, C. J., and EMERSON, J., concurred. MILLER v. ZEIGLER. JUDGMENT AFFIRMED ON THE AUTHORITY OF Miller v. Zeigler, ante. THE defendant appealed from a judgment on default entered in the first district court in favor of the plaintiff. Higbee & Smith, for the appellant. Richards & Williams, for the respondent. The COURT: The only questions raised in this case are such as were decided against the appellant in Miller v. Zeigler, a case between the same parties decided at this term. On the authority of that case, therefore, the judgment in this is affirmed. JUDGMENT AFFIRMED ON THE AUTHORITY OF MILLER v. ZEIGLER, ante. THE defendant appealed from a judgment on default entered in the first district court in favor of the plaintiff. Higbee & Smith, for the appellant. Richards & Williams, for the respondent. The COURT: The questions raised are such only as were decided against the appellant in Miller v. Zeigler, decided at this term. On the authority of that case, therefore, the judgment in this is affirmed. WOOLNER v. ZEIGLER. JUDGMENT AFFIRMED ON THE AUTHORITY OF MILLER V. ZEIGLER, ante. THE defendant appealed from a judgment on default entered in the first district court in favor of the plaintiff. Higbee & Smith, for the appellant. Richards & Williams, for the respondent. The COURT: The questions raised are such only as were decided against the appellant in Miller v. Zeigler, decided at this term. On the authority of that case, therefore, the judgment in this is affirmed. SMITH v. FISHER. EXTENSION OF THE TIME TO FILE TRANSCRIPT ON APPEAL in this court, under rule 2, must be obtained before the expiration of the time in which, under said rule, the transcript should be filed, or the appeal will be dismissed on motion. WHERE A PARTY APPEARS AND IS HEARD IN OPPOSITION TO AN EX PARTE MOTION, thereafter he is precluded from treating the order made upon such motion as an ex parte order. APPEAL from the third district court. The defendant appealed, but failed to file the transcript on appeal within thirty days from the date the appeal was perfected. Subsequently the defendant, on application to the chief justice, without disclosing that the time for filing the transcript had expired, obtained an order extending the time to file the transcript, and within this extension of time filed the transcript. The plaintiff, under rule 3, applied ex parte for an order dismissing the appeal; the defendant was heard, at his request, in opposition to the motion. The rules of the supreme court provide: "Rule 2. In all cases where an appeal shall be perfected, the transcript of the record shall be filed in this court within thirty days after such appeal shall have been perfected, unless further time be allowed by the court or one of the justices. “Rule 3. If a transcript be not filed within the time pre scribed or allowed, the appeal may be dismissed, on motion, during the first week of the term without notice, and at any time afterwards on notice; a cause so dismissed without notice may be restored during the same term on notice of five days to the adverse party, and for good cause shown; and unless so restored, the dismissal shall be final and a bar to any other appeal in the same cause." R. B. Tripp, for the motion. J. B. Dilley, contra. The court, without filing a written opinion, dismissed the appeal, holding that the chief justice, after the expiration of thirty days from the perfecting of the appeal, had no power under the rules to extend the time for filing the transcript. All the justices concurred. Subsequently the defendant moved, under rule 3, to reinstate the appeal. H. F. Williams, for the motion. R. B. Tripp, contra. The court overruled the motion to reinstate, holding that defendant's appearance on the motion to dismiss the appeal precluded him from treating the order dismissing the appeal as an ex parte order. SMITH v. FISHER. WHERE COSTS ARE ALLOWED TO THE PREVAILING PARTY ON AN APPEAL to this court, an attorney's docket-fee of ten dollars may be taxed as a part of the costs on the appeal. APPEAL from the third district court. The appeal of defendant having been dismissed with costs, respondent taxed as costs an attorney's docket-fee of ten dollars, which was the only item appearing in the cost bill as filed. The respondent moved to retax the costs. H. F. Williams, for the motion. R. B. Tripp, contra. The court, no opinion being filed, overruled the motion to retax costs, holding that as it had been the custom of the bar, which custom had been recognized by the court, to tax, as costs incurred by the prevailing party on an appeal, an attorney's docket-fee of ten dollars under the fee bill of the United States, that practice would not now be disturbed. All the justices concurred. SNELL v. CROWE. AN OFFICER SEEKING TO RETAIN PROPERTY LEVIED UPON BY HIM IN ATTACHMENT in the hands of a third party must show an indebtedness due from the person against whom the attachment is issued to the attaching creditor, the writ of attachment, and the proceedings upon which the writ is issued. As proof of such indebtedness, the judgment recovered in the action by the attaching creditor subsequent to the attachment proceedings is admissible. AN OFFICER, IN ORDER TO JUSTIFY the seizure of property in the possession of a stranger to the writ under which the property is taken, must plead specially such justification. A JUDGMENT WILL NOT BE REVERSED FOR AN ERROR, where by the subsequent rulings of the court it is clearly apparent that no injury could have resulted from it. ALLEGATIONS IN A SWORN COMPLAINT OF VALUE AND DAMAGE not specifically denied in the answer are admitted. It is not error to so instruct the jury. FAILING DEBTOR, SALES BY.-A person, though in debt, may sell his property to whom he pleases, if no lien exists to prevent it, and if the transaction is a fair one, made in good faith, and for a valuable consideration. LEVY BY OFFICER-ABUSE OF WRIT.-An officer has no right to make use of a tenement of another in which to store property attached by him, without the assent of the occupant. A possession by the officer longer than is reasonably necessary to remove the goods or take an inventory is an abuse of his authority, and renders him a trespasser ab initio. INSTRUCTION REFUSED-CURED BY VERDICT.-A judgment will not be reversed for refusal to give an instruction abstractly correct, where the facts which are the basis of the instruction are negatived by the verdict. THE INTEREST OF ONE PARTNER IN PARTNERSHIP PROPERTY MAY BE LEVIED UPON and sold to satisfy the individual debt of such partner, to effect which the whole of the partnership property may be taken possession of by the officer making the levy; but the levy and sale thereunder |