The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1867-01-05
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frfof aha ippeals

cred lha nplnlon N iha amnt
The 1ussiima presented M iliIa eaaa
ulae aut N a mNtInh made w ihe
rnfl boloe W gnaah q writ ~ NM
(tiai1s itsucd ffn Ne Probate Court
IN tho iiih iay N UVtulitf, isgt, M
avm N iho defendant w orfnf
against lhe plaintiffs. commanding
tho sheFin N make certain mm ~
money therein specified out n the
voo,la and chaiteIs. hHde aHJ irur
menis, and estate n lawson v Hen
defson deceased IN The hands and
possession II mid Margaret a Tread.
we'll and Ann Elizabeth &. I'osiclI,
distfibWecs u thocstatc N said Hon.
derson, deceased.
it, Because said execution issued
In violation oi The "siay law"
"a. Because said execution issued
against the lands Of dcccdcni ailcr
the discharge Of the administrator,
and without rcyiyor or sci. f. against
the heirs, distributes, or tcrro-icn-
ANTS.
81. Because said execution COM
manded the sheriff to make the costs
without stating the amount thereof
9TH. Because the execution had
been superseded and said supcrse-
deas remains undischargcd.
9th. Because the decree upon
which il issued was void.
This motion was overrulcd upon
the hearing in the Court below, and
a bill of exceptions taken and filed
setting out all the facts in evidence
The action of the court ovcrruling
this motion, Is the error complained
Of here.
1t appears by the record that, OF
the 18th day of November, 1860
defendant in error, as guardian fol
B. =. Herndon, recovered a judg.
ment in the Probate Court agains
Love as administrator of Lawson +
Henderson, deceased. That on tn,
18th of January, 1861, writ o
feri .tacids, issued on that judgmcn
against the administrator. That oI
the 18th day of January, 1861 th,
administrator rendered his final ac
count las it was then regarded an,
was ordered upon an agreement be
tween him and the distributes to b
discharged. That afterwards, on tn
application Of Love, the Probat
Court granted an order supcrsedinI
said execution, upon the pctitione
executing bond with security. TIL
date of the order does not appear
That on the 18th of June, 1861, th
bond was executed. No writ @
error appears in the record, but tn
sheriff returned the execution super
sedcd on the Goth of June, 1861.
1t further appears that at the Apr
term, 1861, of said Probate Cour
application was made by Mrs. Po:
tell, and also by A.. b. Treadwell fc
letters of administration dc bOnis no
on Henderson's estate, which has bee
continued ever since.
The matter stood thus until III
October term, 1865, Of the Probat
Court of Madison county, when I'll
, court, so far as the record gives I
any information, upon its own mc
ton, without notice to any one intel
! ested, ordered the issuance of q
execution on the original judgmeI
! in favor of appellee, and against Il
i estate, goods, chattels, lands and ten
ments Of l.. +. Henderson, decease'
/, in possession of said Treadwell an
, wife and Mrs. Postell, as distribute
, Of said estate. This execution W,
issued as directed, but with no bill
costs annexed.
/ II is first urged by the defenda
. in error, that the writ of error, boz
i and supersedeas to the original jud
. ment on which this execution W
|, founded, were nullities alter the lap
/ of three years from the rendition
a the decree.
II This is not necessarily so; the Q
of limitation Code, p. 40l, arti'
~ II, limits the time Of the issuance
4: the writ to three years from the re
10 dition of the judgment or deer,
Or but in this case there is nothing
% show whether the writ Of error /
4 been sued out or not; il may now
70 pending in this court for aught Il
q appears in this record. But aga
- the act of limitations was suspend
&C until twelve months after the war
n the act Of the 18th Of Deccmb
r 1862, p rs. SO that the operation
n the statute could not be invoked
:. properly pleaded.
y A still further answer to this vi
y is that the defendant in error col
"A not avail himself Of the statute
nj limitation on this motion in
L court below, as a plea in bar o
,et writ of error, pending or VIII
ilv might be pending, in the High Co
o. of Errors and Appeals. If the v
r;c Of error had not been sued out
nd returned TO the High Court in pro
40 time, he should have moved for
! a dismissal there, or il il had b
,ss filed there, he should have plead
H. statute in that Court, If il had b
ON in force.
The case of Butler vs.. Craig, es
2sth Miss. II. p. 500, only holds
to the failure of the clerk below to
an sue the writ Of error, within
ch. time limited by the act, will not a
-. the plaintiff in error upon a pie
:, =. the statute in the High Court;
80 that his remedy, if be sustains I'M
H., by the negligence Of the clerk
failing to issue Il in time, is aga
him.
ary IL is urged further. as 20 the