McInnis v. Simmons

• Decision Date: 07 March 1932
• Docket Number: 29805
• Citation: 162 Miss. 606,139 So. 872
• Court: Mississippi Supreme Court
• Parties: MCINNIS v. SIMMONS et al

139 So. 872

162 Miss. 606

MCINNIS v. SIMMONS et al

No. 29805

Supreme Court of Mississippi

March 7, 1932

Division A

1. APPEAL AND ERROR.

Supreme court will receive affidavits and determine whether title to judgment on which appealing execution creditor relies has been transferred to third person (Code 1930, sections 3021, 3376).

2. APPEAL AND ERROR. Where it appeared that title to judgment on which appealing execution creditor relied had been transferred to appellee, appeal held dismissed (Code 1930 sections 3021, 3376).

It appeared that, from a judgment in favor of claimant of property levied on by execution, execution creditor appealed and claimant filed plea in bar of appeal, supported by affidavit and certified copy of a judgment which third person had subsequently obtained against execution creditor, together with certified copy of execution thereon which sheriff had levied on execution creditor's judgment against his execution debtor, such judgment being basis of litigation pending on appeal, and that claimant became purchaser of such judgment, depriving execution creditor of any interest therein.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Proceeding by A. K. McInnis, plaintiff in execution, against E. C. Simmons, defendant in execution, wherein the Federal Credit Company was claimant of the property levied on by execution. From a judgment for the claimant, the plaintiff in execution appealed, and the claimant filed a plea in bar of the appeal. Plea sustained, and appeal dismissed.

Plea sustained, and appeal dismissed.

R. L. Bullard and Bullard & Bullard, all of Hattiesburg, for appellant.

The plea in bar is a nullity. It purports to tender issues of fact dehors the record which this court will not, because it cannot legally, try.

At the proper time and place there will be, interposed several defenses resting on facts outside of the record.

The subject-matter of the claim is attested only by the affidavit of J. Smith Garoway, which is only his conclusions of law as to what records which he says are in his office show. Records cannot be exemplified in that manner.

Stevens & Heidelberg, of Hattiesburg, for appellees.

Title to the judgment appealed from in this case has passed from appellant to another. Appellant does not have any interest in the appeal now pending and it should be dismissed.

OPINION

McGowen, J.

A. K. McInnis, the appellant, was plaintiff in execution in the court below, the Federal Credit Company was claimant of the property levied on by execution, and E. C. Simmons was defendant in execution.

From a judgment in favor of the Federal Credit Company, A. K. McInnis prosecutes this appeal.

The Federal Credit Company files a plea in bar of the appeal here; the plea being, in substance, to the effect that, since the rendition of the judgment appealed from in this case, a judgment was rendered in the county court of Forrest county in favor of the First National Bank against A. K. McInnis and B. O. McInnis, for one hundred seven dollars and eighteen cents and costs, on August 13, 1931. Thereupon, an execution issued based upon said judgment, and the sheriff levied same upon the judgment which McInnis had theretofore obtained against Simmons, the basis of the litigation pending on appeal here. Said judgment was sold by the sheriff, and the Federal Credit Company, the appellee here, became the purchaser of said judgment.

It will be seen that the judgment against Simmons, the basis of this litigation, is no longer owned by the appellant, nor has he any interest therein, according to the allegations of the plea. The Federal Credit Company, being the appellee here, and the other party to the litigation, is now the owner of the basis of this suit.

The plea in bar filed was sworn to by the secretary and treasurer...