Scharff Bros. v. Zimmerman
Scharff Bros. v. Zimmerman
Opinion of the Court
delivered the opinion of the court.
The priority of liens provided in favor of enrolled judgments according to their seniority by sect. 1737 of the Code of 1880 is not lost to the senior creditor by his failure to point out to the sheriff property of the defendant which is subject to levy and sale. If, on being notified by a junior creditor to ‘proceed in the collection of his judgment, he sues out execution and places it in the hands of the proper officer, he has done all that the law requires him to do for the preservation of his priority. The fact that the junior creditor, by the exercise of unusual diligence, acquires information of the existence of property of the defendant subject to execution and points it out to the officer, does not subordinate to the lieu of his judgment those of others which, are senior, and the owners of which are not in default. Superior diligence on the part of the junior creditor will not alone give him priority; there must also be sloth, negligence, or fraud on the part of the creditor
The judgment is reversed and cause remanded.
Reference
- Full Case Name
- Scharff Bros. & Co. v. E. Zimmerman, Trustee, etc.
- Status
- Published
- Syllabus
- Jtjdqment-Lten. Priority. How preserved. Notice under seet. 1787 of Gode of 1880. If the holder of a judgment with a prior lien acquired by enrollment as provided insect. 1736 and 1737 of the Code of 1880, upon being notified by a judgment-creditor having a subsequently acquired judgment-lien, to proceed in the.collection of his judgment, causes an execution to be issued and placed in the hands of the sheriff, that is all the law requires of him in the preservation of his lien, and he is not required to point out to the sheriff the property subject to the execution.