Vick's v. Maulding

Decided January 15, 1835

Mississippi Supreme Court · decided 1835-01-15

WILLIAM H. LANE, who sued for the use of John W. Maulding, recovered a judgment in the circuit court of the county of Warren, against Grey Vick, executor of the last will and testament of Willis B. Vick, deceased. After the rendition of the judgment, a bill was filed by the defendant at law in the court below, upon which an injunction was obtained to said judgment, which injunction was subsequently dissolved by the court upon bill and answer.

Decided 1835-01-15

Mr. Chief Justice Sharkey

¶1delivered the opinion of the court.

¶2This motion is made to dismiss on the ground that the judgment below was once enjoined, and the injunction dissolved, the defendant insisting that the injunction amounted to a release of errors. By a fair construction of our statute, it is admitted that a release of errors was not signed and sealed as the statute directs.

¶3If the release had been made in strict pursuance of the law, it would have formed the ground of a plea to the assignment of errors, to which the plaintiff might reply or demur, 2 Tidd, 1232; and if this be a release, it is only so by construction, and cannot stand on more favorable ground, than if it had been regularly executed, and cannot, therefore, be made available on motion.

¶4The motion must be overruled.