59 Miss. 169 | Miss. | 1881
delivered the opinion of the court.
In 1879 Loeb & Bloom recovered a judgment against P. F. Burns. Under this judgment an execution was issued and levied on a horse, as the property of the defendant therein. T. O. Willis interposed a claim to a three-fourths interest in the horse, a trial of which resulted in a judgment in favor of the plaintiffs, from which judgment Willis appeals. To the same term of this court to which this appeal was prayed, Burns prosecuted an appeal from the judgment rendered against him. At a former day of this term a judgment was rendered on that appeal, reversing the judgment and remanding the cause for a new trial. Burns v. Loeb, ante, 167. This case is now submitted on the record, and on an agreement of counsel that the court may consider the reversal of the principal case as admitted, giving to such admission its legal effect.
In the cases of Denson v. Denson, 33 Miss. 560, and Bowen v. Seale, 45 Miss. 30, it was decided that where the error assigned was the improper dismissal of a bill of review, the Court of Appeals would consider the correctness of the original decree. The reason for this, as said in Denson v. Denson, is because if the bill of review is properly filed, the consideration
It is unnecessary to consider the errors assigned, because the facts proved show that the appellant could not interpose his claim to the property. The claim is for an undivided interest in the property, and the sheriff, by virtue of the execution and levy upon the interest of the defendant, had the
Judgment affirmed.