Moulton

The appeal taken herein is from an order perpetually restraining the sheriff from executing a writ of possession issuing under a judgment in ejectment.

The action was for the purpose of recovering possession of certain premises from Mary Ann McDermott and certain defendants. Judgment was given in favor of the plaintiff, but when the writ of possession involved here was issued, the defendant in the action was dead, and Fanny McElhinny, who was not a party to the original action in ejectment, was in possession, by her tenant, of the premises, and upon her application the court below enjoined the sheriff from interfering with her under the writ.

The plaintiff in the action above alluded to contends that Mrs. McElhinny was so connected with the original action, although not a formal party thereto, that she ought to be held concluded by the judgment therein rendered, and therefore subject to be removed from possession of the premises under the present writ of possession.

The defendant, Mrs. McDermott, set up, in her answer in the original suit, that she was the tenant in possession of John McElhinny, the husband of the party now in possession, Mrs. McElhinny, who now claims to be…