Edgington v. Edgington

• Citation: 162 S.W.2d 1082,179 Tenn. 83
• Parties: EDGINGTON v. EDGINGTON et al.
• Decision Date: 02 June 1942
• Court: Tennessee Supreme Court

162 S.W.2d 1082

179 Tenn. 83

EDGINGTON v. EDGINGTON et al.

Supreme Court of Tennessee.

June 2, 1942

Rehearing Denied June 27, 1942.

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Attachment bill on a note by Mrs. Lucille Edgington against Mrs. Ruth Edgington and others. From a decree dismissing the bill, the complainant appeals.

Decree reversed, and cause remanded.

Nelson Mitchell & Norvell, and Graham Moore, all of Memphis, for appellant.

Ernest Williams, of Memphis, for appellee.

McKINNEY Justice.

This attachment bill, filed November 10, 1941, seeks a decree upon the following note:

"Detroit Mich. June 11, 1928 "$861. 05/100

"On demand after date for value received I promise to pay to the order of Jesse Edgington

"Eight Hundred & Sixty one & 05/100 at 126 Court Avenue, Memphis, Tenn. Room 303 with interest at the rate of 6 per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorneys fees.

I. H. Edgington" (Signed)

The note was delivered to the payee in Memphis, in which city it was made payable; hence the validity of the note must be determined by the laws of Tennessee. Hubble v. Morristown Land & Improvement Co., 95 Tenn. 585, 32 S.W. 965; First National Bank of Geneva, Ohio, v. Shaw, 109 Tenn. 237, 70 S.W. 807, 59 L.R.A. 498, 97 Am.St.Rep. 840.

It was alleged in the bill, and subsequently proven, that the maker of the note was a resident of Michigan when he executed same and continued his residence in that state until his death in April, 1938; and complainant, in anticipation of a plea of the statute of limitations of six years, invoked section 3 of Chapter 10, Acts of 1865, Code section 8581, which is as follows: "If at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action."

The maker of and the payee in the note were brothers, the former being a resident of Detroit and the latter a resident of Memphis, where he died testate on April 7, 1932. By his will he gave all of his property to his wife, complainant Lucille Edgington. J. H. or Irving Edgington died intestate, survived by his wife, Ruth Edgington, and one son, Baxter Edgington, residents of Detroit and defendants herein.

Thomas B. Edgington, father of Jesse and Irving Edgington, died testate about the first of January, 1929, and by his will devised to his son Irving a one-fifth interest in a 35-acre tract of land situated southeast of the City of Memphis. The defendants were brought before the court by attaching their interest in this tract of land and by publication in The Daily News.

The defendants filed a plea in abatement which raises the primary question for decision, and from which we quote the following:

"*** that at the time of the execution of the note sued on in this cause the said Irving Edgington was a citizen and resident of Detroit, Michigan, and that the said Irving Edgington continued his residence uninterruptedly in the City of Detroit and State of Michigan from the date of the death of his father, Thomas B. Edgington in 1929 and from the date of the probate of said will January 11, 1929 until the date of his death in April, 1938; that from January 11, 1929, the date of the probate of the will of Thomas B. Edgington, action by attachment could have been brought to subject said real estate to the payment of said note, if said note were a valid and subsisting obligation of the said Irving Edgington, and this remedy was complete and unaffected by the non-residence of the said Irving Edgington and is not, therefore, within the purpose of Section 8581 of the Code of Tennessee.

"The defendants, Mrs. Ruth Ed. and Baxter Edgington therefore say the complainant's cause of action and particularly the right of attachment, if any, accrued more than six years before said bill was filed and that no new promise to pay said debt sued on was made within six years next before the filing of said bill."

The allegations of the plea are sustained by the stipulated facts.

The chancellor sustained the plea in abatement and dismissed the bill, and from his decree the complainant has appealed and assigned the action of the chancellor for error.

In sustaining the plea in abatement the chancellor committed error, since by virtue of section 8581 of the Code the suit was not barred by the six-year statute of limitations.

This question is very fully and ably dealt with by this court, speaking through Judge Neil, in Boro v. Hidell, 122 Tenn. 80, 120 S.W. 961, 963, 135 Am.St.Rep. 857. With respect to the proper interpretation of the foregoing statute, the opinion in that case recites: "It is insisted that the terms of this statute are broad and general, and that no exception thereto can be made by the court. We are referred by complainant's counsel, in the very able brief filed, to numerous cases from other states having similar statutes, in which it has been held by the great majority of them in accordance with the contention just stated. On the other hand, it is insisted by defendant's counsel that the decisions of this court bearing upon the question hold that where the action may be prosecuted without the necessity of personal service upon the defendant, and full relief granted, the statute quoted does not apply."

We wish to emphasize the fact that it is only in those cases where the action may be prosecuted without the necessity of personal service upon the defendants, and full relief granted, that the statute does not apply.

In that particular case the bill sought to set aside a conveyance of a local tract of land for fraud, in which, necessarily, full relief could be granted. The opinion then refers to the leading case of Taylor v. McGill, 74 Tenn. 294, 6 Lea 294, another case involving the fraudulent disposition or acquisition of land, and also to the case of Turcott v....