The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-02-01
OPINION OF JUDGE HILL.

/
southern District of Mississippi, November
Term, 1879.
GERARD ALLEN, EFT AL,
SAMUEL B. THOMAS.
This is motion made by Allen and 9th
ers attachment plaintiffs, against hlce'
Todd & Co., in this Court, against the oe'
PENDANT in this motion, for rule 10 SNOW
cause why he shall not be held in contempt
of this Court, for obstructing It's process,
bv resisting and obstructing the Mafsnai ol
this Court, in levying upon and selzing
stock of goods and merchandise, as tno
property of said Rice, Todd d Co., the
defendants in said attachments, by virtue
Of said attachments, then in the hands Oh
the Marshal to be executed.
TO this rule the defendant makes ans
wer, that he by his duly appointed deputy;
nnder and by virtue of an execution issued
bv the Clerk of the Chancery Court OF Hlnds
county. on the 10th day of the present
month. upon a decree of said Court, rem
dered upon the 9th day of May, 1871, III
favor of Julia Rice, against L. u. hice,
for the sum of $16, 718 40, had on the day
of the issuance OF said execution, LEVIED
mon and seized said goods and merchan-
disc. as the property of said I. G. Rice, the
defendant in said execution, and was SO
nossessed thereof, when the Marshal, by
his deputy, attempted 20 levy and seize the
same, and that he, by his deputy, mains
tanned his possession of the same, as he
had lawful right. and as it was his duty to
do 70 this answer the plaintiffs In this
motion reply that the execution under which
the Sheriff, by his deputy, assumed
to act and under which he claims justltica>
tion. was and is upon its face void and OF no
etfnct and affords to the Sheriff no JUSTIN
totion whatever, aud for the reason that
more than seven years had elapsed from the
condition of said decree, before the issuance
Of said execution. 10 this replicati N, the
Sherjff reioins that an execution was
issned upon said decree, on the 21st day of
Nav 1872, by virtue of which large
amount of real and personal property be-
longing to said F. G.. Rice, was levied upon
hv the Sheriff and sold and that for the
proceeds of which credit was lnoors9o
upon the execution so last issued.
The facts as insisted upon are not de-
MED by the plaintiffs Ill the motion' put
they deny that the execution hrst issued
not having been issued within year ana
day, from the day upon which the decree
was rendered. was of any validity wnat,
ever, but insist that the decree was VOID
and afforded no foundation for the lssu-
ances of the last execution they TURNER
insist that as the last execution does hot
recite upon its face, that it IS and alias ex-
ecution, that for the purpose OF tins motion
it must be considered as the original execu-
ton upon said decree.
There being no dispute as to the facts on
either side the legal question arising
thereon, being questions OF connlct
of jurisdiction between State and
Federal Court, are important aud demand
the careful consideration of the court
The rule is now too well settled to re-
duire authority to sustain it, that when
Sheriff has property in his possession
under process legal and valid upon
its face, issued form a State Court,
that he cannot be disturbed in his
possession by the Marshal under process
| from q Federal Court nor can Marshal,
so in possession, under process issued from
a Federal Court valid upon its iace' be de-
Driyed of possession by a Sheriff by virtue
Of process issued from State Court !, and
| am of opinion that where the process is
only voidable, at the instance of the defend
ant, in the execution that the possession OF
the officer who first obtains it is entitled to
she like protection.
This brings us to the consideration OF the
question, as to whether or not the execution
issued on the 10th Of this month is void
process upon its face or only voidable. BY
the common law the writ of .fere tactGS
could only be issued within year and q
day after the rendition of the Judgment
Il this was not DONE the plaintiff had to
resort to new suit upon the judgment.
This was afterwards amended by statute,
by allowing the plaintiff the writ Scire .ttcSdS,
calling upon the defendant to show Cause
why the writ of # ia should not issue. The
Code of 1871 prescribes: When the q ia
shall issue, or rather the time in which ii
may issue, which is year and day after
| Judgment, or after the dissolution of an in
juction or supersedeas; see section 030.
Section 2153 provides that all actions OF
debt upon any Judgment or decree, rendr r.
ed in the Courts of this State, shall be
brought within seven years from their rem
dition, and not after, and that no execution
shall issue upon such Judgment or decree
These provisions Of the Code taken together
provide that the execution may issue
within day and year from the
rendition Of the judgment or decree,
and may be continued by the is
| suance of another execution within seven
years from the issuance of the last success
! sively, for an indefinite period; provided,
that not more than seven years shall have
elapsed between the issuance of each, after
the issuance of the first. 1t is admitted
that more than day and year elapsed from
the day on which the decree was rendered
before the issuance of the first execution,
which under the decision in the case OF
Evans VS.. Mitchell, 5 Howard, Miss. r., 54S
rendered that execution voidable and irreg
ular, but not void, and if motion haG
been made by the defendant or any one in
terested before sale was made under it,
doubtless the Court would have quashed it,
but as that was not done all parties inter
ested must be held to have waived objection
to it. In the case of Bracken VS.. Wood,
English, Arkansas Reports, COS, under 9
statute similar to the provisions of our Code
on the subject under consideration, it was
held that where the execution was not is-
sued until after year aud day had elapsed,
after the rendition of the judgment, it was
not sufficient Predicate, for the issuance
of second execution, and upon motion
Of the defendant, the last execution was
quashed, but in doing SO the Court only
held the last execution irregular and voida
bic, not gold. This is as far as any decis
ion has gone, so far as have been fur
nished with authority, Or have found by
my own research.
am, after very careful consideration
Of the subject, brought to the conclusion
that if the execution issued on the 10Th day
of this month was not valid it ives only
voidable, and not void. 1t il, However, i'll
sisted by counsel for the motion that ia,
execution upon its face does not state, tina
il is all alias execution. and that more thar
seven years having elapsed from the rendi
tons of the decree, and the statute having
prohibited the issuance of the execution
after that date except in the cases pro
vided for, that it was void upon its face
aud afforded no protection to the Sheriff
The want Of such recitation is such AZ
irregIlarity, as is amendsble, and being 50
the Sheriff has a right to show the facts q,
they exit, and if they ertitle him to pro
lection to receive it, any other rule woulC
he too harsh 10 be enforced.
] am satisfied that the seizure Of thes,
goods, by the Sheriff may work grea
lordahiD upop the r,lautsffs in Fbaqa otf.cb