Mobile & Ohio Railroad v. Trotter ( 1858 )

Harris, J.,

delivered tbe opinion of tbe court.

Tbe sheriff of Clarke county having in his hands an execution in favor of tbe defendant in error, against Nathaniel Shotts, issued on a judgment of tbe Circuit Court of said county, bearing date tbe 24th April, 1857, and enrolled on tbe same day, levied it, on tbe 15th day of September, 1857, on a wagon, and returned it, for want of time, to tbe October term, 1857.

On tbe 5th day of December, 1857, a venditioni exponas issued on this judgment, directing tbe sheriff to sell tbe wagon, which was returned executed, by a sale of tbe wágon, on tbe 4th February, 1858, for sixty-five dollars, which was claimed by the plaintiff in error, under a judgment of older date, against tbe same defendant and Simeon Box, rendered on the 14th of October, 1854, which money was returned into court, and the advice of the court asked as to its appropriation. The judgment of the plaintiff in error appears also in the record, dated as above, and enrolled on the same day. Afterwards, forthcoming bond was given and forfeited, and judgment thereon enrolled on the 9th May, 1856. Executions issued regularly on said judgment. No negligence is proven, and no notice to the plaintiff in error. Neither under the Act of 1844, nor under the New Code, is an older judgment creditor deprived of his right to prior satisfaction, unless by some act of his, or some omission, whereby his right in law becomes postponed or extinguished. Nothing is shown in this record to justify the postponement or extinguishment of the lien of the judgment in favor of the plaintiff in error in this case.

It is insisted that the New Code has restored the rule existing prior to the Act of 1844, by which it was held that sale of property under a junior judgment alone was a sale subject to the lien of older judgments not levied, and that in such cases the junior judgments were entitled to the proceeds of sale. This is, we think, an erroneous construction of Articles 260 and 261. New Code, 524. After providing for enrolment, lien from the date thereof, and priority according to the order of enrolment, it is provided “ that this priority of lien shall not extend to judgment creditors, who fail, refuse, or neglect to’ sue out execution, until a junior judgment creditor has by due diligence caused his execution to be levied on the property of the defendant; but in all such cases, the sale by the sheriff, &c., shall vest the title of the defendant in the purchaser, and the proceeds of sale shall be applied to the junior judgment. Provided, that before said junior creditor shall cause a levy to be made, he shall give notice to older creditors, on execution, that unless they proceed to levy in ten days, he will proceed; in that case, he shall have a preference under his levy.

The only event in which this act provides for the satisfaction of a junior judgment, in preference to one of older date and prior lien, is where, after ten days’ notice to such older judgment, by his negligence, his execution is not sued out until after the levy of the junior judgment.

Here both executions were in the hands of the sheriff at the time of levy and sale. Why both were not levied does not appear; but certainly no default or neglect is shown on the part of plaintiff in error. And that the sheriff should, by his failure to levy executions in his hands, change the lien of judgments, and defeat the rights of parties, could not be permitted.

It is further suggested that plaintiff in error has judgment against another defendant also, besides Shotts, and for that reason should be postponed. ’ We suppose this is not seriously intended.

Let the judgment be reversed, and judgment rendered here for the plaintiff in error.

A réargument was asked for, but refused.