Simpson v. Smith Sons' Gin & Machine Co.

Mississippi Supreme Court
Simpson v. Smith Sons' Gin & Machine Co., 75 Miss. 505 (Miss. 1897)
Woods

Simpson v. Smith Sons' Gin & Machine Co.

Opinion of the Court

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.

Reference

Full Case Name
Samuel J. Simpson v. Smith Sons' Gin & Machine Co.
Cited By
4 cases
Status
Published
Syllabus
1. Chancery Practice. Pro confesso. Reversal. Though a final decree be predicated of a pro confesso to a bill or cross bill, yet it will be reversed, on appeal, if it appear, from the whole case, that the party in whose favor it was rendered was not entitled to the relief granted. 3. Judgment Lien. General, not specific. Inability of one who acquires property. Rights of plaintiff. A judgment lien is a general one on the debtor’s property liable to execution. It is not a specific lien, and one who acquires and disposes of property liable to execution is not subject to account to the plaintiff for its value. The plaintiff's only right is to follow and subject the property itself.