Hamblen County v. Cain

• Decision Date: 30 September 1905
• Citation: 89 S.W. 103
• Parties: HAMBLEN COUNTY v. CAIN.
• Court: Tennessee Supreme Court

Page 103

89 S.W. 103

HAMBLEN COUNTY v. CAIN.

Supreme Court of Tennessee.

September 30, 1905.

Appeal from Chancery Court, Hamblen County; Hugh G. Kyle, Chancellor.

Suit by Hamblen county against T. C. Cain. From a decree of dismissal, complainant appeals. Affirmed.

Essary & King and Hickey & Hickey, for appellant. J. A. Carriger, for appellee.

NEIL, J.

This action was brought December 28, 1904, in the chancery court of Hamblen county, to recover of the defendant $670.40, fees for witnesses, officers, etc., left in his hands uncalled for, that had accumulated prior to the year 1878, during the eight years of his service as clerk of the circuit court of the county next before the said year 1878. The bill charges that these moneys are still in his hands. A demurrer was filed, making the defenses of the ten-year statute of limitations, provided by Shannon's Code, § 4473, the statute of limitations of six years, the presumption of payment from long lapse of time, and laches. The chancellor sustained the first and last grounds stated, and dismissed the bill. Thereupon the complainant appealed, and has assigned errors.

The action is brought under Shannon's Code, § 661, which reads as follows:

"The judge or chairman of the county court is also required in making settlements with clerks, to ascertain what amount of money is in their hands due to witnesses, officers, and others, which may have been collected by them from suitors, or from the state or county treasury, and which has been in the hands of the clerk for more than two years, and such sums shall be paid into the county treasury as other county revenue."

The preceding section (660) gives the chairman or county judge power to require the clerks of the various courts of his county to exhibit their books, records, etc., to him, with a view to ascertaining revenue collected by such officer for the use of the county.

It was held in Deaderick v. Washington County that such moneys were due to the county under the familiar law of escheats. 1 Cold. 202. See, also, Head v. Barry, 1 Lea, 753. But in the later case of Johnson v. Hudson, 96 Tenn. 630, 36 S. W. 380, it was, in effect, denied that funds of this character were collected by the county under the law of escheats. Special stress was laid upon section 664, which provides, in substance, that funds, when so paid into the county treasury, shall there remain subject to the demand of the original owners, and shall be paid to them on such demand,...