Johnson v. Cole Mfg. Co.

110 So. 428 | Miss. | 1926

^* Corpus Juris-Cyc. References: Judgments, 34 C.J., p. 582, n. 59. On the 18th day of May, 1923, the Cole Manufacturing Company obtained a judgment against L.C. Franklin, L.P. Slater, and the Johnson-Harlow Lumber Company, a corporation. Through some inadvertence or oversight of the clerk, this judgment was not placed on the judgment roll until March 12, 1924. On the 31st of December, 1923, the Johnson-Harlow Lumber Company executed a deed of trust in favor of certain parties named therein. This deed of trust was executed by J.H. Johnson, president of the Johnson-Harlow Lumber Company, who had full knowledge of the fact of the judgment being rendered. Afterwards, on the 19th day of May, after the enrollment of the judgment in March, a sale was had under the trust deed, and Johnson purchased the property. After the Cole Manufacturing Company issued an execution on its judgment, this being the 7th day of October, 1925, the execution was levied on certain personal property, and Johnson filed his claim thereto, which gives rise to the present lawsuit.

The question for decision is whether or not, under sections 606 and 607 of Hemingway's Code, being sections 818 and 819 of the Code of 1906, the Cole Manufacturing Company acquired a lien under their judgment, and whether or not, in the absence of a lien, they can resort to property conveyed in the deed of trust which was afterwards purchased by Johnson.

Sections 606 and 607 of Hemingway's Code read as follows:

"606. The clerk of the circuit court shall procure and keep in his office one or more books, to be styled the `Judgment Roll,' which book shall be appropriately divided under the several letters of the alphabet, and on each page shall be placed the following caption:

— ------------------------------------------------------------------- | Amount of | | County and | | Defendant's | Judgment | Date of | Court in Which | Date of | Names. | or Decree. | Rendition. | Rendered. | Enrollment. | --------------------------------------------------------------------- ----------------------------------- | When | Plaintiffs' | and How | Remarks. Names. | Satisfied. | — ---------------------------------

"And the clerk shall, within twenty days after the adjournment of each term of the court, enroll all final judgments rendered at said term, in the order in which they were entered on the minutes, by entering on the judgment roll, under the proper letter or letters of the alphabet, the names of each and every defendant to said judgment, the amount of such judgment, the date of its rendition, the county and court in which rendered, the date of enrollment, and the names of the plaintiff or plaintiffs. When any judgment shall be satisfied, the clerk shall so enter under the proper heading, and subscribe the entry.

"607. 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 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."

We are of the opinion that these sections give no lien until the judgment is enrolled; that it is the enrollment of the judgment that creates the lien; and that the judgment roll is not merely for the purpose of giving notice of a preexisting lien. There being no lien until the enrollment of the judgment on the property of the Johnson-Harlow Lumber Company, title passed by the deed of trust to the trustee and by the sale thereunder to Johnson. In other words, the Cole Manufacturing Company had no legal title or lien that affected the title, and it is immaterial whether Johnson had knowledge of the judgment or not. The judgment did not attach to the property under the circumstances stated. See Hughes v. Lacock, 63 Miss. 112; Planters' Bankof Tennessee v. Conger et al., 20 Miss. (12 Smedes M.) 527;Wyatt v. Beaty, 10 Smedes M. (18 Miss.) 463; Hamilton ShoeCo. v. Walker, 67 Miss. 197, 6 So. 713.

The judgment of the court below will be reversed and judgment rendered here for the appellant.

Reversed, and judgment for appellants.