Opinion
No. 29585.
November 16, 1931.
1. COUNTIES.
County warrant has no validity until it leaves hands of county officer and is delivered.
2. COUNTIES. Execution.
Undelivered county warrant in hands of clerk of board of supervisors, sealed and signed by clerk after service of execution, held without vitality, and not subject to levy.
APPEAL from circuit court of Calhoun county; HON. T.E. PEGRAM, Judge.
Thos. L. Haman, of Houston, for appellant.
Notes and bills of exchange are not subject to judgment liens because it would destroy their negotiability.
Waldon v. Yates, 111 Miss. 631, 71 So. 897.
The interest of a beneficiary in a deed of trust in the land therein deeded was not subject to sale under execution.
Beckett v. Dean, 57 Miss. 222.
A chose in action not evidenced by a written instrument is not subject to a judgment lien.
Bryan v. Henderson Hdw. Co., 107 Miss. 255, 65 So. 242.
Money, bank notes, bills, evidences of debt circulating as money and any judgment or decree belonging to the defendant may be taken under execution and sold or disposed of according to law.
Section 3021, Code 1930.
A county warrant is subject to seizure under execution.
Mulford v. Roberts, 112 Miss. 573, 73 So. 609.
To all intents and purposes the warrant was and remained the property of judgment debtor, subject to levy of execution under a judgment. Patterson Patterson, of Calhoun City, for appellee.
Under sections 611 and 3021 of the Code of 1930, the enrolled judgment of appellant against M.D. Richardson did not create a lien against an indebtedness owing by Calhoun county to said Richardson, which said indebtedness had been previously to the issuance of the execution transferred and assigned for value to appellee.
Bryan v. Henderson Supply Co., 107 Miss. 255, 65 So. 242; Walden Company v. Yates, 111 Miss. 631, 71 So. 897.
On January 5, 1931, an execution was issued by the circuit clerk of Calhoun county on an enrolled judgment against M.D. Richardson, the execution being made returnable on January 19, 1931, to the justice court in which the judgment was rendered. During the month of December, 1930, the said Richardson was employed by Calhoun county at a salary of one hundred dollars per month; and on the fourth day of December, he secured from J.P. McCaslin ninety-five dollars, and delivered to the clerk of the board of supervisors an order to deliver to McCaslin the warrant for his December salary; and in a letter to McCaslin the clerk acknowledged receipt of the order, and promised compliance therewith. From an agreed statement of facts, upon which the cause was submitted on claimant's issue in the court below, it appears that on January 7, 1931, the execution was levied on the said warrant, it being further agreed that when the execution was levied the warrant in question had not been signed or sealed, and that "after the sheriff served the execution on the chancery clerk, the clerk then put the seal on and signed his name to the warrant." On the return day of the execution, the said J.P. McCaslin filed an affidavit claiming the warrant, and, upon issue thereon tendered by the plaintiff in execution, the cause was heard, and judgment entered in favor of the plaintiff in execution. On appeal to the circuit court, judgment was rendered in favor of the claimant, and, from that judgment, the plaintiff in execution prosecuted this appeal.
It will be unnecessary to here decide whether the order for the delivery of the warrant constituted an assignment thereof, or whether the execution was valid, although both questions are argued by counsel.
In the case of Bryan v. Henderson Hdw. Co., 107 Miss. 255, 65 So. 242, it was held that the lien of an enrolled judgment upon the property of a defendant does not extend to cover the right to receive or recover a debt. While in the case of Walden Co. v. Yates, 111 Miss. 631, 71 So. 897, it was held that promissory notes, bills of exchange, and vouchers for the payment of money due, are not subject to judgment liens.
A county warrant is but a voucher for an indebtedness, Cleveland State Bank v. Exchange Bank, 119 Miss. 868, 81 So. 170, and it has no vitality until it leaves the hands of the county officer, and is delivered to the payee or his agent. 15 C.J. 601; State v. Pierce, 52 Kan. 521, 35 P. 19; Steffen v. Long, 165 Mo. App. 254, 147 S.W. 191; York County v. Thompson, 215 Pa. 578, 64 A. 781; American Bridge Co. v. Wheeler, 35 Wn. 40, 76 P. 534. Conceding for the purpose of the decision that the warrant would have been subject to levy as personal property of the payee, after completion of the issuance thereof by delivery, it had no vitality and was not subject to levy at the time the sheriff levied the execution and took it into his possession. This being true, the court below reached the right result in the judgment entered, and it will therefore be affirmed.
Affirmed.