44 So. 810 | Miss. | 1907
delivered the opinion of the court.
In May, 1898, D. W. T. Sanders recovered a judgment against Luke T. Murphy for the sum of $202.50. Subsequently, Sanders having assigned the judgment to E. A. Shuler and the judgment being about to expire, suit was brought on the judgment for the purpose of renewing it, and a judgment rendered against Luke T. Murphy in favor of Mrs. M. A. Shuler, executrix of the estate of E. A. Shuler, for the sum of $354. After this judgment was recovered, it was suggested that I. W. Black, sheriff and commissioner of Attala county,was indebted to Luke T. Murphy, and a writ of garnishment was issued and served upon Black. In answer to this garnishment, Black stated that he had in his hands as commissioner, in the case of Ann Simmons v. Luke Smith et al., the sum of $109.31, which by decree of the court he was ordered to pay Luke T. Murphy as his distributive share of the proceeds of certain real estate ordered to be sold under the decree of the chancery court in cause No. 2,155, in which cause Murphy was a defendant. He further states that he has been notified that Miss Margaret Murphy and Ellen Murphy, who were co-defendants with Luke T. Murphy in the suit above referred to in the chancery court, claimed to be the owners of the sum in his hands. He then prays that the Misses Murphy be summoned to appear and interpose their claim in court, and that he be allowed to pay the said sum in court, and that Mrs. Shuler, executrix, and the Misses Murphy, be required to contest their respective claims for same.
The record shows the following: On the 14th day of March, 1898, and prior thereto, Margaret Murphy, Ellen Murphy, and
The solitary question presented for decision is whether or not, under the facts in this case, the judgment creditor of Luke T. Murphy can claim the proceeds of this sale in the hands of the commissioner as to that part which the decree ordered paid Luke T. Murphy. The judgment creditor stands in exactly the same attitude in relation to the fund that the judgment debtor does. If Murphy cannot prevail in asserting his claim to the fund against his codefendants, Margaret and Ellen Murphy, then the judgment creditor must also fail. Miss. Valley Co. v. Chicago, etc., Ry. Co., 58 Miss., 846;
Authorities dealing with the subject-matter of this suit are not numerous. In the nature of things, a question of this sort does not often arise, and the best case we have found is the case of Finley v. Cathcart, 149 Ind., 470; s.c., 48 N. E., 586; s.c., 63 Am. St. Rep., 292. The case cited above is so apt in its application to the case under discussion we may be pardoned for quoting its language, merely substituting the names of the parties in this case. Unless it can be said that the issue raised alone by the petition in the partition suit was sufficient to warrant the court in determining the question of title between
The case of Alsobrook v. Eggleston, 69 Miss., 833; 13 South., 850, cited by counsel for appellant, has no application here. In the Alsobrook case, supra, one Payne and Alsobrook purchased certain real estate, taking title in name of Payne. Subsequently, Alsobrook having died, Payne began a suit for partition, in which he set out the facts, alleging that the Also-brook heirs were tenants in common with him, and asked for a .sale for partition. Eggleston was at that time a stranger to the proceeding, with no interest in it whatever. The property was ordered to be sold for partition, and at this sale Eggleston bought the property; but the sale was never confirmed, and Eg
Lei the judgment of the lower court be a-ffirmed.