Hines v. Noah

52 Miss. 192

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The proceeding was replevin for a mule, brought by the owner of the animal against the sheriff. The officer justified under a fieri facias issued from the chancery court of Attala county, by which he was commanded to make “the sum of $138 out of the goods and chattels, lands and tenements, of A. R. Hines, late executor of N. Hines, deceased,” and “to have the money before the judge of our said court to render to those entitled to receive the same for decree and costs aforesaid.”

There is no plaintiff named in the writ of fieri facias, nor any person to whom the money is to be paid. The decree under which it issued appears to have been rendered on ascertainment of the balance due on final settlement of an administration account, in accordance with § § 1167-1169 of Revised Code ; but it would seem that there was no determination in the decree of the parties to whom the amount should be paid.

It is manifest that no valid execution can issue on such a decree. There is nobody who can demand payment of it, nor to whom a payment voluntarily made would operate as a satisfaction. The parties who claim to be the beneficial owners of the decree must, by petition or other proper proceedings in the chancery court, establish their right before any fieri facias can issue;

The court perhaps could have directed the money to have been paid to the clerk, or to a commissioner, until the parties entitled should be ascertained, and could have awarded execution for the collection in favor of such officer ; but this was not done. Until there is some judicial ascertainment of the persons entitled to it, or some party designated to receive it, there can be no valid execution.

If the decree did name the parties entitled to receive the money, they should have been named in the fieri facias.

Judgment reversed and new trial awarded.

Campbell, J., having been of counsel, takes no part in this decision.