Nimocks v. McGehee
Mississippi Supreme Court
From the circuit court of Pearl River county. ■Hon. William H. Cook, Judge., Nimocks, appellant, was plaintiff in the court below; McGehee, a constable, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court.
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From the circuit court of Pearl River county. ■Hon. William H. Cook, Judge., Nimocks, appellant, was plaintiff in the court below; McGehee, a constable, appellee, was defendant there. From a judgment in defendant’s favor plaintiff appealed to the supreme court. The facts as stated by Anderson, J., were as follows: “Rouse Bros. & Smith, a mercantile corporation under the laws of this state, recovered judgment by default in a justice of the peace court against the appellant, Nimocks. S. O. Smith was the justice of the peace before whom the judgment was recovered. He is a first cousin of H. S.…
1Opinion of the Court
Anderson, J.,
after stating the facts as above, delivered the •opinion of the court.
Where a judgment on which execution is issued is void, the-defendant in execution may maintain replevin, for tire goods-seized thereunder. The judgment being void, the levy of the-execution thereunder is void, and the defendant may treat the-whole as a nullity, and pursue replevin for his property seized *325under such judgment and execution. Breckenridge v. Johnson, 57 Miss. 371; 34 Cyc. 1369.
'Section 165 of the Constitution of 1890 provides: “No judge of any court shall preside on the trial of any cause where the…
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