
    Scharff, Bernheimer & Co. v. Chaffe, Powell & West.
    Attachment. Levy; who may question. Ungathered crops.
    
    A judgment overruling the motion of an attaching creditor to vacate the levy of a senior attachment on cotton in the field, will not he disturbed where the record fails to show a valid levy by the junior creditor. Whatever may be true of the validity of the levy, the junior creditor cannot question it unless he has procured such a levy upon the property as will give him precedence.
    From the circuit court of Tallahatchie county.
    HoN. B. W. WilliamsoN, Judge.
    On the 23d of November, 1890, appellees, Chaffe, Powell & West, sued out an attachment in the court below against W. G. Peebles & Co. . On the 24th of November, the writ of attachment ivas levied on certain property, including cotton ungathered in the field. On February 3, 1891, appellants, Scharff, Bernheimer & Co., made a motion in said cause to quash the writ of attachment in so far as the same was levied upon the crop in the field, as shown by the return of the sheriff, and that the levy be released on said crop. The motion recites that Scharff, Bernheimer & Co. are junior attaching creditors, but nothing else appears as to this, no affidavit, bond, writ or other proceeding on their behalf appearing in the record. This motion was overruled. There is no bill of exceptions and no testimony is set out.
    On the 4th of February, 1891, the sheriff having returned that he had gathered and ginned the cotton levied on in the field, judgment was entered in favor of plaintiffs, Chaffe, Powell & West, and condemning the property to be sold in satisfaction of their debt.
    • On the next day Scharff, Bernheimer & Co. filed a petition for appeal in said cause, reciting that they felt aggrieved by the action of the court in overruling their motion. They gave bond and prosecuted an appeal.
    
      Coleman & Barry, for appellants.
    (Counsel filed a brief, contending that under the statute the levy of appellees’ attachment on a growing crop was invalid; but, as the court decides the case on another ground, the argument and authorities cited are not given.)
    
      W. C. McLean, for appellees;
    The motion of appellants filed in this case recites that they are junior attaching creditors of Peebles & Co., but the record does not show that they are such. It does not appear that they had levied on the property in controversy.
    Argued orally by 8. B. Coleman, for appellant.
   CAMPBELL, C. J.,

delivered the opinion of the court.

Whatever may be true as to the validity or invalidity of the levy on the cotton in the field and unpicked, there is nothing in the record to show any superiority of right to the cotton in the appellants which entitled them to contest with the appellees as to the cotton. There is in the record a motion by the appellants as “junior attaching creditors” to quash the levy as to the cotton ungathered when the writ was levied, November 24, 1890; but when they became attaching creditors, and when and how their writ was levied, if at all, on this cotton does not appear. The record shows a levy of the writ of the appellees on the cotton in the field, and that the sheriff caused it to be picked, ginned and baled by virtue of this writ, and upon this state of facts the appellants had no right to question the validity of the levy and dealing with the cotton, unless they procured a levy upon it under such circumstances as would give them precedence of right to it. They have failed to show anything on the subject, and we must assume the correctness of the judgment of the circuit court.

Affirmed.  