Scharff, Bernheimer & Co. v. Chaffe
| Decision Date | 18 May 1891 |
| Citation | 9 So. 897,68 Miss. 641 |
| Parties | SCHARFF, BERNHEIMER & CO. v. CHAFFE, POWELL & WEST |
| Court | Mississippi Supreme Court |
April 1891
FROM the circuit court of Tallahatchie county, HON. R. W WILLIAMSON, Judge.
On the 23d of November, 1890, appellees, Chaffe, Powell & West, sued out an attachment in the court below against W. G. Peebles & Co. On the 24th of November, the writ of attachment was levied on certain property, including cotton ungathered in the field. On February 3, 1891, appellants, Scharff Bernheimer & Co., made a motion in said cause to quash the writ of attachment in so far as the same was levied upon the crop in the field, as shown by the return of the sheriff, and that the levy be released on said crop. The motion recites that Scharff, Bernheimer & Co. are junior attaching creditors, but nothing else appears as to this, no affidavit, bond, writ or other proceeding on their behalf appearing in the record. This motion was overruled. There is no bill of exceptions and no testimony is set out.
On the 4th of February, 1891, the sheriff having returned that he had gathered and ginned the cotton levied on in the field, judgment was entered in favor of plaintiffs, Chaffe, Powell & West, and condemning the property to be sold in satisfaction of their debt.
On the next day Scharff, Bernheimer & Co. filed a petition for appeal in said cause, reciting that they felt aggrieved by the action of the court in overruling their motion. They gave bond and prosecuted an appeal.
Affirmed.
Coleman & Barry, for appellants.
(Counsel filed a brief, contending that under the statute the levy of appellees' attachment on a growing crop was invalid; but, as the court decides the case on another ground, the argument and authorities cited are not given.)
W. C. McLean, for appellees.
The motion of appellants filed in this case recites that they are junior attaching creditors of Peebles & Co., but the record does not show that they are such. It does not appear that they had levied on the property in controversy.
Argued orally by S. R. Coleman, for appellant.
Whatever may be true as to the validity or invalidity of the levy on the cotton in the field and unpicked, there is nothing in the record to show any superiority of right to the cotton in the appellants which entitled them to contest with the appellees as to the cotton. There is in the record a motion by the appellants ...
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... ... affirmative showing on the record, the contrary is ... established. 3 Cyc. 275; Scharff v. Chaffee, 68 ... Miss. 641, 9 So. 897; Smith v. Berry, 1 S. & M. 321 ... "It ... is ... ...
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... ... & M. 535; Green v. Creighton, 7 S. & M. 197; ... Doty v. Lucas, 43 Miss. 337; Schraff v. Chaffe, 9 ... So. 897, 68 Miss. 641 ... It is ... also the uncontroverted rule of this court ... ...
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Scharff, Bernheimer & Co. v. Fonda
...and a judgment was entered accordingly, from which plaintiffs appeal. Affirmed. S. R. Coleman, for appellants. The judgment in Scharff v. Chaffe, 68 Miss. 641, was inter alios acta, and cannot be relied upon as res judicata. That judgment was rendered because the record failed to show that ......