Simpson v. Smith Sons' Gin & Machine Co.

Mississippi Supreme Court

Simpson v. Smith Sons' Gin & Machine Co.

75 Miss. 505

CourtMississippi Supreme Court

DecidedDecember 15, 1897

StatusPublished

Cited by4 cases

This text of 75 Miss. 505 (Simpson v. Smith Sons' Gin & Machine Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simpson v. Smith Sons' Gin & Machine Co., 75 Miss. 505 (Mich. 1897).

Pincite

Opinion

Woods, C. J.,

delivered the opinion of the court.

Notwithstanding the decree pro confesso, the final decree and the failure of the appellant to appear in the court below, if, on the whole case as presented here, it appears that the appellee was not entitled to relief, the decree must be set aside. The ground upon which appellees sought relief against appellant was this': Appellees had obtained judgment against Dewberry, which had been duly enrolled, and thereby acquired a general judgment lien upon certain personal property, and appellant had acquired this property and disposed of the same subsequently to the rendition and enrollment of said judgment. But the property was never taken in execution, and thereby subjected to the judgment lien, and the appellees have only a record debt against Dewberry. The lien is not a specific lien on certain property, but only a general lien on all property subject to levy and sale, and does not attach until the judgment creditor takes the property in execution. It follows that the appellees were not entitled to relief, and' the decree pro confesso, as well as the final decree, should be set aside. This appears to be settled law in this state, as well as elsewhere generally. Dozier v. Lewis, 27 Miss., 679; Westmoreland v. Wooten, 51 Miss., 825; Cloud v. State, 53 Miss., 662; Wooten v. Gwin, 56 Miss., 422; Freeman on Judgments, sec. 338.

As it is clear that appellee is not entitled to relief, the decrees pro confesso and final are

Reversed, and the hill dismissed.

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Woods, C. J.,

delivered the opinion of the court.

Notwithstanding the decree pro confesso, the final decree and the failure of the appellant to appear in the court below, if, on the whole case as presented here, it appears that the appellee was not entitled to relief, the decree must be set aside. The ground upon which appellees sought relief against appellant was this': Appellees had obtained judgment against Dewberry, which had been duly enrolled, and thereby acquired a general judgment lien upon certain personal property, and appellant had acquired this property and disposed of the same subsequently to the rendition and enrollment of said judgment. But the property was never taken in execution, and thereby subjected to the judgment lien, and the appellees have only a record debt against Dewberry. The lien is not a specific lien on certain property, but only a general lien on all property subject to levy and sale, and does not attach until the judgment creditor takes the property in execution. It follows that the appellees were not entitled to relief, and' the decree pro confesso, as well as the final decree, should be set aside. This appears to be settled law in this state, as well as elsewhere generally. Dozier v. Lewis, 27 Miss., 679; Westmoreland v. Wooten, 51 Miss., 825; Cloud v. State, 53 Miss., 662; Wooten v. Gwin, 56 Miss., 422; Freeman on Judgments, sec. 338.

As it is clear that appellee is not entitled to relief, the decrees pro confesso and final are

Reversed, and the hill dismissed.

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75 Miss. 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-smith-sons-gin-machine-co-miss-1897.

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