Jenkins v. Wilkerson

76 Miss. 368 | Miss. | 1898

Woods, C. J.,

delivered the opinion of the court.

The decree of the chancery court of Shelby county, Tennessee, filed with the declaration, by which Wilkerson & Co. were declared to be the owners in their individual right of the seventy bales of cotton, then said by said decree to be in the hands of Shoemaker & Co., and entitled to the cotton or its proceeds, freed from all claim thereto by the appellant, was not, and is not, a decree against appellant for the cotton or its proceeds. When that decree was rendered it seems not to have been known to the court or counsel for appellees that the proceeds of the cotton had been paid over to appellant by Shoemaker & Co., who were not parties to the proceeding in said chancery court. The appellees were clearly entitled to recover the amount of the proceeds derived from the sale of this cotton, then in appellant’s hands, but no open account or other bill of particulars was filed either under the first count of the declaration, based upon the Tennessee court’s decree, or under the count of the declaration for money had and received. Except the statement in the first count of the declaration, there is nothing to show what the amount of the proceeds of the cotton was, nor at what time appellant became chargeable with interest thereon. •

Under section 7é9, code of 1892, a writ of inquiry should have been awarded and these facts submitted to the finding of the jury. • And because judgment final was entered, without the award of such writ, the judgment must be reversed and the cause remanded.

We fail to discover any other reversible error.

Reversed.