Gerlach-Barklow Co. v. Ellett, 111 So. 92

Gerlach-Barklow Co. v. Ellett

111 So. 92 | Miss. | 1927

^* Corpus Juris-Cyc. References: Judgments, 34 C.J., p. 588, n. 23; p. 617, n. 29 New; p. 632, n. 14 New. The appellant, Gerlach-Barklow Company, secured a judgment for one hundred sixty-three dollars and seventy-nine cents against one of the appellees, C. Grady Ellett, which was duly enrolled. Execution was issued on this enrolled judgment, and an automobile belonging to the judgment debtor, Ellett, was levied upon to satisfy the judgment. Before the sale of the automobile, however, the execution was stopped by the judgment creditor, who wrote a letter to the sheriff in the following language: *65

"Sheriff of Coahoma County, City: You are hereby authorized to release that certain Ford coupe belonging to C.G. Ellett, from the execution issued by Gerlach-Barklow Company upon the payment of costs and this shall be your authority for so doing.

"[Signed] T.A. FRAZIER."

After the car was released from execution, the judgment debtor, Ellett, sold it to the Standard Automobile Company, one of the appellees herein, and the contest in this law-suit is between Gerlach-Barklow Company and the Standard Automobile Company as to which has the superior right to the car which was subsequently levied upon under an alias writ of execution obtained by the judgment creditor, and claimed by the purchaser, the Standard Automobile Company.

The appellee, the Standard Automobile Company, contends that the judgment creditor, Gerlach-Barklow Company, waived and surrendered its judgment lien against the car when it authorized the sheriff to release the car from the first execution issued by the judgment creditor and the lower court so held, seemingly upon the idea that no lien attached against personal property under an enrolled judgment, unless and until the property was seized under the writ of execution.

The appellant contends that the judgment of the lower court is wrong, because the judgment creditor had a lien upon the automobile by his enrolled judgment, under section 819, Code of 1906 (Hemingway's Code, section 607), which reads as follows:

"A judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment-creditor, his representatives or assigns, against the judgment-debtor, and all persons claiming the property under him after the rendition of the judgment; and a judgment shall not be a lien on any property of the defendant thereto unless the same *66 be enrolled; but in counties having two judicial districts a judgment shall operate as a lien only in the district or districts in which it is enrolled," — and that the car was subject to levy of execution by the judgment creditor, even though the judgment creditor had made a former levy upon the car and released it.

We think the lower court was in error to hold that the judgment creditor herein waived or released his lien upon the car when he authorized the sheriff to release the first levy of execution. This act of releasing the levy of the judgment creditor could in no way impair or defeat the judgment lien on the car given him under the statute.

The question has been so well settled in this state that it seems needless to cite authority therefor. We do not see wherein the appellee, the purchaser of the car from the judgment debtor, Ellett, can complain of the enforcement of the judgment creditor's lien, because he was not misled in any way, and he was bound to take notice of our statutory law on judgment liens, and he was charged with the knowledge of the lien of the judgment creditor when he purchased the car from Ellett.

We therefore conclude that the judgment of the lower court was error, and must be reversed, and judgment entered here for appellant.

Reversed, and judgment here for appellant.

Reversed.