Goode v. C. C. Mayson's Administrators, 6 Howard 543

Per Curiam. A motion was made in the circuit court to appropriate money levied under two executions, one in favor of defendants in error, and the other in favor of Lyons and Gilmore, both against the goods and chattels of John H. Mallory.' H. B. Sutton had obtained an older judgment against Mallory, and had assigned it to Goode, the plaintiff in error. The judgment of Lyons and Gilmore was the next oldest, and that of the defendants- in error the youngest; but the-defendants in error showed the property and had their execution levied.

The execution of Lyons and Gilmore was also levied on the same property at the same time, and the sheriff proceeded to sell under both, and he applied the money to the satisfaction of Lyons and Gilmore; but the court on motion ordered it to be applied to the execution of the defendants., This Goode, the assignee of Sutton, opposed, on the ground that his judgment was the oldest, and that he was therefore entitled to the money, although his execution had never been levied. The case comes up on his bill of exceptions;. Goode and G. 0. Mayson’s administrators being the only parties to this writ of error.

As between the parties to the record, the judgment must be affirmed on the authorities cited; and Goode, if he has any lien, must be left to his recourse against the property. 'But as Lyons and Gilmore are no parties to this record, we cannot give judgment either for of against them, but must leave them to reverse or acquiesce in the judgment below, as they may think proper. Judgment affirmed.