McGraw v. Mitchell

107 So. 423 | Miss. | 1926

^* Corpus Juris-Cyc. References: Executions, 23CJ, p. 379, n. 6. R.L. Mitchell Lumber Company, a partnership, filed its bill against S.T. Carr, sheriff of Winston county, and J.D. McGraw, plaintiff in execution, and obtained an injunction restraining the sheriff from selling under execution certain lands described in the bill. The following facts are material to a statement of the case: J.D. McGraw obtained a judgment against T.R. Tucker on the 19th day of July, 1915, and the judgment was enrolled on the judgment rolls of Winston county on the 2d day of February, 1916. On the 13th of July, 1913, McGahey and wife executed a deed to T.R. Tucker conveying the lands in controversy and the same parties executed a warranty deed conveying the same lands to W.T. Castles on the 10th day of July, 1917. Later W.T. Castles died testate and by his will devised the land to his heirs. C.C. Castles, trustee and executor of the last will and testament of W.T. Castles, conveyed the lands to appellees here, complainants in the injunction bill in the court below. Later, on the 19th day of October, 1923, T.R. Tucker and wife conveyed by quitclaim deed the same land to appellees.

Execution was issued on the judgment obtained by J.D. McGraw against T.R. Tucker on the 8th day of July, 1924, placed in the hands of Carr, sheriff, and levied on these lands here in controversy on the 4th day of August, 1924, and the sheriff was proceeding to advertise and sell said land when, upon the allegation of the complainant in his bill below that the execution was barred by the statute, the sale was stopped by injunction proceedings. Other facts were developed which it is unnecessary to detail here. It will be noted that more than seven years had intervened from the date of the rendition of the judgment before execution was issued thereon.

The defendants in the injunction suit set up the fact which is undisputed that, for most of the time intervening between the date of the rendition of the judgment and the date of the issuance of the injunction, the defendant in the execution, Tucker, was absent from the state. The court below overruled the motion to dissolve the temporary injunction, made the injunction granted perpetual, and taxed the defendant McGraw with all the costs.

The only question raised which we deem of sufficient importance to notice is whether or not an execution may be issued upon a judgment after seven years from the date of the judgment when no action has been brought by which the judgment is renewed.

Section 3103, Code of 1906 (Hemingway's Code, section 2467), is as follows:

"All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree."

Appellants rely on section 3108, Code of 1906 (Hemingway's Code, section 2472), which is as follows:

"Absence from the State. — If, after any cause of action have accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as any part of the time limited for the commencement of the action, after his return."

In order to maintain appellants' contention, this court will be compelled to hold that the issuance of an execution was the "commencement of an action" because the above section (2467) distinctly recites that —

"An execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree."

In the case here under consideration the seven-year period had more than expired counting from the date of the rendition of the judgment when the execution was issued.

There is a marked distinction between bringing an action on a judgment and having execution issued based on a judgment. The words "action," "suit," and "cause" are convertible terms and we find no authority for construing the word "execution" in connection with its issuance upon a judgment to mean an action or a suit or a cause. See Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281.

We think the issuance of an execution is not the beginning of an action or the beginning of a suit, and that section 3108, Code of 1906 (Hemingway's Code, section 2472), may not be invoked to authorize the issuance of an execution on a judgment rendered more than seven years before its date. The issuance of an execution not being the bringing of an action, neither section 3103, Code of 1906 (Hemingway's Code, section 2467), or section 3108, Code of 1906 (Hemingway's Code, section 2472), may be availed of here.

We think the court below was correct in making the injunction perpetual in this cause.

Affirmed.