Simpson v. Smith Sons' Gin & Machine Co.

Woods, C. J., delivered the opinion of the court. Notwithstanding the decree pro confesso, the final decree and the failure of the appellant to appear in the court below, if, on the whole case as presented here, it appears that the appellee was not entitled to relief, the decree must be set aside. The ground upon which appellees sought relief against appellant was this': Appellees had obtained judgment against Dewberry, which had been duly enrolled, and thereby acquired a general judgment lien upon certain personal property, and appellant had acquired this property and disposed of the same subsequently to the rendition and enrollment of said judgment. But the property was never taken in execution, and thereby subjected to the judgment lien, and the appellees have only a record debt against Dewberry. The lien is not a specific lien on certain property, but only a general lien on all property subject to levy and sale, and does not attach until the judgment creditor takes the property in execution. It follows that the appellees were not entitled to relief, and' the decree pro confesso, as well as the final decree, should be set aside. This appears to be settled law in this state, as well as elsewhere generally. Dozier v. Lewis, 27 Miss., 679; Westmoreland v. Wooten, 51 Miss., 825; Cloud v. State, 53 Miss., 662; Wooten v. Gwin, 56 Miss., 422; Freeman on Judgments, sec. 338. As it is clear that appellee is not entitled to relief, the decrees pro confesso and final are Reversed, and the hill dismissed.