Robinson v. Green , 7 Miss. 223 ( 1842 )

Per curiam.

This case comes up from the judgment of the circuit court, rendered on a motion made by the plaintiffs to apply money collected by the sheriff. There were several judgment creditors contending for the same money. The property had been sold under three executions, and there were two other claimants whose executions had not been levied. Their claims are therefore of course out of the question, and the money must be appropriated to the executions under which the property was sold. The oldest judgment was in favor of Pittman v. Green, et al., which was rendered in 1836: the second was in favor of Scott and Avery v. Green, et al., rendered in 1837; and the third was in favor of the plaintiffs in error against the same defendants, which was rendered in 1839. The older judgments constituted prior liens, and must be first satisfied, unless the liens have been postponed or lost by the acts of the plaintiffs in the executions.

The plaintiffs in error insist that they are entitled to the money on account of their superior vigilance in finding the property which produced it, although theirs is the youngest judgment; and they also contend that the prior liens have been lost by negligence. It is difficult to settle upon any precise degree of mere passive negligence which would destroy the lien. This subject was ably investigated in the case of Russel v. Gibbs, 5 Cowen, 390, from which it seems that an unreasonable delay in prosecuting process will destroy the lien, and also that giving instructions not to levy or giving a stay will destroy it, as against other creditors. There were no instructions given in either of these cases not to levy, nor was there any stay given, and we are not prepared to say that the negligence was such as to destroy the lien. Pittman followed up his judgment by having execution issued to the next term after judgment, and it was levied, and a forthcoming bond taken. On this he had another fi. fa. issued, and with the exception of a period of time during which his process was enjoined, he seems to have followed it up with tolerable regularity. There was certainly no gross negligence on his part, and nothing short of that would destroy his lien. There was not such a delay as to amount to evidence of fraud on other creditors. The execution of Scott and Avery seems also to have been followed up, at least it was so considered by the court. A judgment is a lien and it can only be defeated by showing that it has been lost by gross negligence, or by giving time, and the showing for this purpose must come from the party who wishes to avoid it. We do not consider that the plaintiffs have shown enough to avoid it, and it must therefore stand as a prior lien. But as the court applied part of the money to an execution which was not levied, to wit, that of Heard v. the same defendants, this was an error for which the judgment must be reversed, and the money must be applied, first, to the satisfaction of Pittman’s execution; second, to that of Scott and Avery; and third, to that of the plaintiffs in error.