Johnson v. Edde , 58 Miss. 664 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

The judgment of appellee was junior to that of Holliday,, which was transferred to Mrs. Johnson ; and it was not alloAVable to change the relative position of those judgments, as shown by the minutes of the court, by evidence that the first should have been last, and that the last should have been first.. The record fixes unchangeably their order. 'While this is true,, the money in the hands of the sheriff for Mr. Johnson was-not appropriable to the older judgment. But for the bill of appellee it would have been payable, and no doubt would have been paid, to Mr. Johnson, on whose execution against appellee it was collected. There was not any lien on the money in the hands of the sheriff in favor of either judgment against John-sou, and the rule of priorities in the application of money made by execution does not obtain.

It is only when there are several judgments against a person, and money is made by execution against him, that the sheriff must apply the money to the oldest operative judgment-lien on the property of the person from whom the money is collected. The object of the statute requiring the money collected by execution to be appropriated to the oldest subsisting judgment-lien is to protect purchasers at sales under executions in the title acquired, and to transfer the contest from the property sold to the money derived from the sale. It is only the proceeds of a sale that are required to be thus dealt with. Money paid into the hands of the officer, without a sale, or the proceeds of a garnishment, are not subject to the statute, mid are appropriable to the judgment by virtue of which it is •made. Mississippi Central R. Co. v. Harkness, 32 Miss. 203.

The question of seniority of judgments had no place in this •controversy, because the money ivas in the hands of the sheriff for Johnson, who was the judgment debtor of appellee, and was insolvent; wherefore appellee, being, as he supposed, remediless at law, exhibited his bill invoking the aid of the Chancery Court to offset the money due from Johnson to him by that .due from him to Johnson.

We accept the chancellor’s view that the money was placed by appellee in the hands of the sheriff as a depositary, and it was proper for it to go as a credit on the judgment in favor of appellee against Johnson, unless it be true, as contended by the latter, that this money, which was awarded to him as damages for seizing his horse, which was exempt from execution, was likewise exempt from legal process because the horse was.

If the damages had been for the value of the exempt horse, the question would be different; but Johnson got his horse and $150 damages. The horse was exempt. The damages were something additional to the horse, not for his value, and were not exempt, because not embraced in the contemplation of any law on that subject. The cases cited to support the-view contended for by appellants do not apply to this case.

Decree affirmed.