66 Miss. 451 | Miss. | 1889
delivered the opinion of the court.
To entitle the plaintiff to execution under § 1751 of the code he must have had a lien at the time of the death of the defendant, but in this case the petition fails to show that the judgment was a lien in the only way by which it could become such, i. e., by enrolment, and it shows affirmatively that the lien of the execution was destroyed by the quashal of the levy. Therefore, the petition, by which the parties chose to test their rights, is insufficient to show a right to execution.
The clause “ upon cause shown,” which puzzles some of the counsel, relates to the action of the judge in vacation. Execution may be had by leave of the court, “ or of the judge thereof in vacation, upon cause shown :” that is, upon cause shown therefor the judge in vacation instead of the court may grant leave for execution, without waiting for the court to be held. An emergency may exist for immediate execution, and upon that being made to appear, the judge in vacation may allow the execution. The purpose of this section is to enable the plaintiff to enforce his judgment as to any property of the defendant on which it was a lien, notwithstanding the death of the defendant, and as no formal notice or process is required, leave of the court must be had on motion or petition, or if application is made in vacation to the judge, cause must be shown for not waiting for the court.
In this case the sufficiency of the petition for execution was tested by a demurrer by a party interested, and the demurrer was rightly sustained. Affirmed.