(Download) "Eckman v. Moore" by In the Supreme Court of Mississippi * Book PDF Kindle ePub Free
eBook details
- Title: Eckman v. Moore
- Author : In the Supreme Court of Mississippi
- Release Date : January 25, 2004
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 73 KB
Description
Execution — Writ must Conform to Judgment — When General Execution Improper — Appeal and Error — Reversal of Money Judgment — Payment Before Reversal — When not Voluntary — Jurisdiction of Courts to Enforce Restitution — Supersedeas. Execution must Conform to Judgment. 1. An execution must conform to the judgment on which it is issued in every essential particular. Execution — Judgment Directing Payment of Impounded Money — Execution by Service of Copy of Certified Judgment Proper — Issuance of General Execution Improper. 2. Where one of two defendants had impounded a sum of money pending appeal from a judgment prosecuted by its co-defendant and the judgment was reversed, and judgment was thereupon entered directing that the money be paid over to the prevailing party, such judgment was not enforceable by levy of a general execution upon the property of the party holding the fund, but, Page 184 under the last provision of section 9420, Revised Codes, by service of a certified copy of the judgment; hence an order refusing to issue a writ of execution was proper. Appeal — Failure of Party to Secure Stay of Proceedings or Supersedeas — Payment of Judgment not Necessarily Voluntary. 3. Where an unsuccessful party in an action seeking the recovery of money fails to move for a stay of proceedings pending appeal under section 9736, Revised Codes 1921, or apply for a writ of supersedeas, but pays the money over, such payment is not necessarily to be considered a voluntary one. Appeal — Supersedeas — When Supreme Court Should Grant Writ. 4. The general rule is that where the writ of supersedeas is necessary to preserve the status quo pending appeal to protect the appellant from loss in case of reversal of the judgment or order appealed from, the appellate court should grant the writ. Same — Reversal of Judgment After Payment Thereof — Jurisdiction of Courts to Enforce Restitution — Other Remedy. 5. Where, in the absence of a stay of proceedings or supersedeas, a judgment debtor pays over money pending appeal, and the judgment is thereafter reversed, the court having jurisdiction may enforce restitution; or, the law implying a promise to restore the money to the party from whom it was exacted, the injured party may maintain an independent action for its recovery.