Massey-Herndon Shoe Co. v. Powell

Bunn, C. J. Tbis is a motion for summary judgment, made by tbe plaintiffs against the defendant, as sheriff, for failure to return an execution issued out of tbis court, directed to him and received by him. Tbe first, if not tbe only, question in tbis case is whether or not this court bas jurisdiction to bear and determine tbe motion, which is made under and in conformity to tbe provisions of tbe statute'on tbe subject. Tbe petition shows that tbe plaintiff in tbis action obtained final judgment against D. B. Elliott, H. Combs, William Tucker, A. J. Tucker, A. J. Patrick, James Patrick and E. C. Combs for tbe sum of $673.73 and interest, and that execution was issued by the clerk of tbis court, directed and delivered to tbe defendant, and charges that be failed to return tbe same in tbe time and as required by law. It is manifest that tbis is a different proceeding from the original suit. Tbe parties are different, tbe object of tbe present suit is not the same, and, consequently, this is a new suit, and an original proceeding. As regards the jurisdiction of this court, the constitution of this state says: “The supreme court, except in cases otherwise provided in the constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, and under such restrictions as may from time to time be prescribed by law” (first part of § 4, art. 7, constitution); and the only other reference to the subject which affects the question before us is contained in section 5 of the same article, which reads as follows: “In the exercise of original jurisdiction, the supreme court shall have power to issue writs of quo warranto to the circuit judges and chancellors, when created, and to officers of political corporations, when the question involved is the legal existence of such corporations.” The petition does not set forth or refer to any of the cases the original jurisdiction to hear and determine which is conferred upon this court by the constitution, and this court, having jurisdiction of no other kind of cases, has no jurisdiction to hear and determine the matters and things set forth in the petition, and judgment, accordingly, is here rendered for the defendant.