Opinion
No. 28244.
March 17, 1930.
JUDGMENT. Original judgment without appeal therefrom was not amendable on trial of issue pursuant to statutory affidavit claiming property before sale under levy.
Where original judgment on the merits has become final by reason of fact that no appeal has been taken therefrom, such judgment was not amendable on trial of claimant's issue pursuant to statutory affidavit claiming property before sale under levy.
APPEAL from circuit court of Marion county. HON. J.Q. LANGSTON, Judge.
Rawls Hathorn, of Columbia, for appellant.
The court erred in giving judgment against claimant and his sureties ten per cent of the original judgment and attorneys fee by way of damages as shown by the judgment.
The court erred in finding and giving judgment for interest from August 23, 1929, at eight per cent per annum.
The court erred in giving judgment over against claimant and his sureties in the event of the failure to sell said property or in the event that said property when sold did not bring sufficient to pay the sum of one hundred three dollars and forty cents, the face of the judgment, interest and costs.
Evans v. Junius Hart Piano Co., 140 Miss. 467; Miller v. Griffin, 110 Miss. 535, 70 So. 699; Porter Hdw. Co. v. Peacock, 129 Miss. 129; Johnson v. Standard Oil Co., 71 Miss. 397, 14 So. 533; Whitaker v. Goodwin, 97 Miss. 663, 53 So. 413.
No brief for appellee found.
Appellee obtained a judgment in the justice court against one Will Spencer, Sr., said judgment carrying interest at the legal rate of six per cent. From this judgment no appeal was taken. Later an execution was issued and was levied on a barber chair as the property of said judgment debtor. Before sale under the levy, appellant, Will Spencer, Jr., filed the statutory affidavit claiming the property, and, upon trial of the issue under that claim, the justice court gave judgment against the claimant, whereupon the latter appealed to the circuit court.
In the circuit court the claimant failed to appear, and his appeal was ordered to be dismissed, and in the same order a judgment was entered condemning the property to be sold, and further adjudging that, in case of any deficiency, the said claimant as principal and the sureties in the claimant's appeal bond should pay unto the said judgment debtor the full amount of the deficiency, including an attorney's fee of ten per cent, and that interest at the rate of eight per cent be also added to the amount of the original judgment.
The original judgment on the merits had become final by reason of the fact that no appeal had been taken from it. This final judgment was therefore not amendable on the trial of the claimant's issue, as was attempted to be done. There are several other assignments of error, but, since it is fairly apparent that none of these matters were brought to the attention of the trial judge, we reverse and remand, dealing only with the errors stated, and leave the others, if other errors there be, for the consideration of the trial court as it now appears probable that the claimant will upon a new trial appear and present these questions there, as he should have done in the original instance.
Reversed and remanded.