Scharff Bros. v. Zimmerman

Cooper, J., delivered the opinion of the court. The priority of liens provided in favor of enrolled judgments according to their seniority by sect. 1737 of the Code of 1880 is not lost to the senior creditor by his failure to point out to the sheriff property of the defendant which is subject to levy and sale. If, on being notified by a junior creditor to ‘proceed in the collection of his judgment, he sues out execution and places it in the hands of the proper officer, he has done all that the law requires him to do for the preservation of his priority. The fact that the junior creditor, by the exercise of unusual diligence, acquires information of the existence of property of the defendant subject to execution and points it out to the officer, does not subordinate to the lieu of his judgment those of others which, are senior, and the owners of which are not in default. Superior diligence on the part of the junior creditor will not alone give him priority; there must also be sloth, negligence, or fraud on the part of the creditor [763] in the senior judgment. Robinson v. Green, 4 How. 223 ; Lucas v. Stewart, 3 Smed. & M. 231; Mobile and Ohio R. R. v. Trotter, 35 Miss. 416 ; Dabney v. Stackhouse, 49 Miss. 513. The judgment is reversed and cause remanded.