Scharff, Bernheimer & Co. v. Fonda

Woods, J., delivered the opinion of the court. The question involved in the present appeal is res judicata. The very controversy now pressed by appellants, and the pre [629] eise point now insisted upon before us, was decided adversely to appellants in Scharff v. Chaffe, 68 Miss., 641. The supposed superiority of appellants’ lien was denied in that decision of this court, on the case made on that record by appellants, and the judgment of the lower court, condemning the property to sale to pay the debt of the appellees therein, was distinctly affirmed. The sheriff of Tallahatchie county, in compliance with the former judgment of the circuit court of that county, affirmed by us, paid the proceeds of the cotton to the successful parties. After the affirmance by this court of the former judgment in favor of Chaffe, Powell & West, and after the officer had paid the funds arising from the sale of the cotton in dispute to that firm, appellants made their motion — the foundation of the present appeal — to have the sheriff apply the funds to the payment of their demand. Projierly, the court below overruled this motion. The sheriff is not a party in interest; he is the mere custodian of the fund, and his connection with the controversy is purely nominal. It is really the same controversy, between the same parties, and the sheriff is to be protected in yielding obedience to the judgment of the lower court affirmed by the supreme court. Affirmed.