Clark, Hood & Co. v. Erwin

72 Miss. 926

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinion

Woods, J.,

delivered the opinion of the court.

The appellants elected, when about to begin suit on the note given by appellee for the purchase price of the mule, not to proceed under § 2720, code 1892, and did not file with their declaration, or evidence of debt, an affidavit designating the property sought to be subjected, and averring therein the liability of the property, in whole or in part, for the debt sued on. On the contrary, the note wus sued upon, jointly, with other evidence of appellee’s indebtedness to appellants, in an ordinary action by attachment. On trial of that suit, the attachment was dismissed by appellants, and a personal judgment for the sum demanded entered. By this action the note, now sought again to be recovered upon in the present action, was merged in the judgment taken, as before narrated. The appellants cannot now dismember their judgment, sue upon a part of its foimdation, and show the consideration upon which that part rested originally, and recover another personal judgment against their debtor, and this is what they are endeavoring to do. The judgment sought in the present case is a personal judgment; the attempt to fix a lien upon the mule is a mere incident to such personal judgment.

Affirmed.