39 Miss. 508 | Miss. | 1860
Tbis is a motion for a writ of assistance, to put the complainant in possession of tbe lands and premises adjudged by tbe decree of tbis court to be bis property.
1. That no notice of the same has been given to tbe appellees.
"We are satisfied that no notice of the application is necessary. The decree expressly adjudicates the question of title to the lands and premises; and orders that the appellee, Morton, and those claiming under him, deliver possession thereof to the complainant. A notice of the application would, therefore, be useless; because the writ of assistance is tantamount in a court of equity, as between the parties and those claiming under them, to the writ of habere facias possessionem at law. Valentine v. Tiller, Hopkins Ch. 422.
2. That the application should be made to the Chancery Court.
This objection is valid, under the provision of the Rev. Code, 564, Art. 14. Under that statute the application for the writ of assistance, which is a mere execution of the decree, should be made to the court below. In that court, the issuance of the writ is a matter of course, without notice, being but an execution of the mandate of this court settling the question of the right of possession of the complainant.
Motion denied.
