Bergen v. State ex rel. Chew , 58 Miss. 623 ( 1881 )

Camiujell, J.,

delivered the opinion of the court.

■ The decisive question in this case is whether, under sect. 833 of the Code of 1871, a judgment rendered in one county, with an abstract of it made aud certified as required, and tiled in the office of the clerk of the Circuit Court of another county, in which property of the defendant may be situated, and enrolled on the judgment-roll in such office, but not recorded in a separate book kept for that purpose, became a lien in such other county by virtue of its enrolment, or did the failure to record as directed make the enrolment nugatory.

The lion of a judgment depends on the statute regulating' it. Tt exists, or not, as the statute declares. If the statute provides that certain things must concur to create a lien, it does not exist without the concurrence required and although we are unable to perceive why a record of abstracts of judgments should be required, besides enrolment on the judgment-roll, which is a complete record of the abstract required to be recorded in a separate book, we hud the law was so written, and must enforce it. But for sect. 834 of the same Code, we would feel authorized to regard the requirement to record the abstract in a separate book as not essential to the lien, and that enrolment made it a lieu. The requirement to record might be regarded as directory to the clerk, in order to insure a memorial of the judgment, the abstract of which was directed to be thus recorded, and full effect would be given to the declaration that “ such judgment or decree shall, from the date of its enrolment as aforesaid, be a lien,” etc. “As aforesaid ” might be construed as relating to the manner of enrolling prescribed by sect. 829. An examination of sect. 834 shows that, as to the judgments it embraces, filing, recording as directed by sect. 833, and enrolling, are all necessary to make them liens.

We conclude that under sect. 833 the recording of the abstract was necessary to make it a lien, and that by the failure of the clerk to perform his duty and record the judgment the plaintiff failed to acquire the right which would have accrued to him from such recording.

Judgment affirmed.