Day v. Hartman , 74 Miss. 489 ( 1896 )

Whitfield, J.,

delivered the opinion of the court.

We cannot, on appeal, disturb the decree overruling the demurrers, on the ground that the chancery court had no jurisdiction. Const. 1890, sec. 147; Cazeneuve v. Curell, 70 Miss., 521. The claim as to the,exempt oxen seems not to be insisted on. The answers disclaim ownership, and the proof supports the answers. Besides, the bill averred L. D. Day to be the owner of three oxen, and B. O. Day to be the owner, of six yoke of oxen, and the decree only directed the sale of four yoke of oxen.

Whether, in the absence of any proof, the lumber in this case could be held subject to “waste and decay,” and “expensive to keep,” within the meaning of §516, code 1892- — as was held not to be true of railroad cross-ties in Goodman v. Moss, 64 Miss., 303 — need not, as matter of law, be here declared; for the undisputed testimony shows it was not subject to ‘‘waste or decay, ” or “ expensive to keep. ’’ But, clearly, no error whereon to reverse the decree of the court, which did-not order the sale, can be predicated of the independent and illegal act of the sheriff in making the sale. Appellants’ remedy as to that was ample against the sheriff.

Affirmed.