Am. Exch. Bank v. Andrews

• Decision Date: 31 October 1873
• Citation: 59 Tenn. 306
• Parties: The American Exchange Bank v. Sol. Andrews.
• Court: Tennessee Supreme Court

59 Tenn. 306

The American Exchange Bank

v.Sol. Andrews.

Supreme Court of Tennessee.

October Term, 1873.

FROM SHELBY.

From the First Chancery Court of Shelby County, October Term, 1870. R. J. MORGAN, Ch.ESTES & JACKSON and L. D. MCKISSICK, for Complainant.

C. KORTRECHT and HENRY G. SMITH, for Defendant.

DEADERICK, C. J., delivered the opinion of the Court.

On the 2d day of May, 1860, the complainant filed its attachment bill in the Common Law and Chancery Court of the City of Memphis, against the defendant, alleging an indebtedness of about $10,000, charging that the defendant was about to dispose of his property for the purpose of defrauding his creditors, and praying for the issuance of an attachment to be levied on his property.

An attachment was regularly issued and levied by the sheriff on lot 83, or the south part thereof, which is described by metes and bounds, as appears from the sheriff's return.

The levy was made on the 2d day of May, 1860, and the attachment was levied on some notes also.

On the 3d day of May, 1860, being the next day after the levy of the attachment, Andrews conveyed the lot levied on to the Planters' Bank at Memphis.

On the 3d of May, 1860, Andrews filed a plea in abatement, traversing the grounds alleged in the bill for the issuance of the attachment.

In 1869, proof was taken upon the issue made upon defendant's plea.

On the 12th of October, 1870, the court overruled the plea in abatement; and upon his application, thirty days were allowed defendant to file his answer.

On the 21st of October, 1870, the Planters' Bank applied by petition to become a party defendant in the case, and the court made an order allowing the application; but at a subsequent day of the term it revoked the order and refused the application.

In the mean time, Andrews having failed to answer, a judgment pro confesso was taken against him, December 6th, 1870, and the clerk was directed to report to the then present term, the balance remaining unpaid upon the bill of exchange sued on.

The notes attached, to the amount of about $8,000, had been applied, by agreement, to the debt sued for, reducing the amount due, including interest to the 13th December, 1870, the date of the master's report, to $3,254.81,--as appears from said report.

On the 15th of December, 1870, by leave of the court, the bank and Wm. M. Farrington, who had purchased of the Planters' Bank, filed their original bill in the nature of a supplemental or cross bill, to which the complainant in the original bill demurred, and the court sustained the demurrer, and the Planters' Bank and Farrington appealed to this court. The bill of the Planters' Bank and Farrington does not contest the fact that the attachment was levied upon the lot before their purchase of it: the bank, however, alleged that it had no notice of the levy; but they seek to be made parties to try the case de novo against Andrews, alleging that the plea in abatement was found against him upon insufficient...