Carter v. Brandy

71 Miss. 240

• Court: Mississippi Supreme Court
• Decided: October 15, 1893
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the court.

The circuit court rightly held that the execution issued on the decree, and by virtue of which the sale and conveyance were made under which the plaintiff claimed title, was void for want of authority to issue it, without the security required by § 1902, code 1880, and § 491, code 1892. This security is something required to be given after decree. It is not part of the decree, and the fact that in this case a direction for a special writ was improperly included in the decree does not make applicable the rule denying the assailability collaterally of a decree. The decree was to be made, and afterward, “before any proceedings to satisfy said decree,” the court was to require the prescribed security. The writ of venditioni exponas in this case was void, not being issued by order of the court after decree, and requirement of security as prescribed. In order to divest the title of an absent defendant brought in by publication and not appearing, there must be conformity to law.

Affirmed.