Hargraves v. Hamilton Nat. Bank
| Decision Date | 27 November 1944 |
| Docket Number | 6. |
| Parties | HARGRAVES v. HAMILTON NAT. BANK. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court December 2, 1944.
Appeal in Error from Circuit Court, Hamilton County; Fred B Ballard, Judge.
Replevin action by Georgia Sheridan to secure possession of automobile, wherein J. M. Hargraves signed replevin bond as surety. A judgment was entered in the replevin action in favor of the plaintiff, and thereafter the Hamilton National Bank which was not made a party to the action filed its petition for certiorari in the Circuit Court to have a review of the judgment. A judgment was entered in the bank's favor against Georgia Sheridan and her surety J. M Hargraves, and thereafter an execution was issued and was executed by serving garnishment notice upon the Pioneer Bank to answer how much it was indebted to J. M. Hargraves. From a judgment overruling his motion to quash and discharge the garnishee upon various grounds, J. M. Hargraves alone appeals in error.
Affirmed.
William Hughes, of Chattanooga, for plaintiff in error.
John W Dineen, of Chattanooga, for defendant in error.
By his appeal herein Honorable J. M. Hargraves of the Chattanooga Bar seeks a reversal of the judgment below sustaining an execution and garnishment based upon a judgment against him as surety upon a replevin bond. It is insisted that for the various reasons covered by the assignments of error the judgment upon which the execution issued is void and that the trial court erred in overruling a motion to quash.
On October 12, 1942, defendant in error, Hamilton National Bank, instituted an original attachment suit in the Court of General Sessions against R. M. Sheridan pursuant to which Sheridan's automobile was attached. On October 30, 1942, that case came on for trial and Sheridan's defense that the automobile belonged to his wife was overruled and the attachment sustained. On the same date Sheridan appealed to the Circuit Court and the case was set for trial on November 30, 1942, but, at the instance of Mr. Hargraves, Sheridan's attorney, the case was passed in the Circuit Court until December 28, 1942, when a judgment was entered sustaining the attachment and ordering sale of the automobile.
On October 30, 1942, the same date on which the General Sessions Court sustained the attachment, Georgia Sheridan, wife of R. M. Sheridan, instituted a replevin action against the attaching officers and the garage in which the automobile was stored. Mr. Hargraves signed the replevin bond as surety and the automobile was taken out of the possession of the officers and the garage and, apparently, disposed of by Mrs. Sheridan.
The replevin action did not make the Bank a party and it was not apprised of the replevin proceeding until after judgment in favor of Mrs. Sheridan had been rendered; and it did not know that the automobile had passed out of the hands of the officers until a search was made for it for the purpose of having it sold pursuant to the judgment of the Circuit Court in the attachment proceeding. As soon as it learned these facts the Bank filed its petition for certiorari in the Circuit Court to have a review of the judgment in favor of Mrs. Sheridan in the replevin suit.
After a hearing ex parte a judgment was entered in the Circuit Court on July 8, 1943, reversing the judgment in the replevin suit, substituting the Hamilton National Bank as the real party in interest, and granting judgment in the Bank's favor against Georgia Sheridan and her surety, J. M. Hargraves, for $250 and costs, but providing that the money judgment would be satisfied by the return of the automobile described in the replevin writ within thirty days from the entry of the judgment. The automobile was not returned and, on November 6, 1943, approximately four months after judgment, execution issued from the Circuit Court against Georgia Sheridan and J. M. Hargraves, surety, and was executed by serving garnishment notice upon the Pioneer Bank to answer how much it was indebted to J. M. Hargraves. Mr. Hargraves received timely notice of the garnishment and, on December 4, 1943, filed his motion to quash and discharge the garnishee upon various grounds. On December 20, 1943, his motion was overruled and the garnishment sustained. Motion for a new trial and a motion in arrest of judgment were, successively, filed and overruled.
It is insisted that the judgment upon which the execution issued is void because the replevin writ fails to state a cause of action, does not bear teste and that judgment could not be rendered against plaintiff in error because he was not a party to the proceeding.
The insistence that the warrant failed to state a cause of action is based upon its failure to describe the property. We think this insistence is without merit. The affidavit accompanying the warrant described the automboile as 'one 1937 Chevrolet Coach motor number 89-2014, serial number 8G.B06-B39 25'. We think the affidavit might be treated as a part of the warrant and would enable the executing officer to identify and seize the property intended. The affidavit is attached to the warrant and the warrant specifically refers to the affidavit for description of the property. This is sufficient. O'Brien v. State, 158 Tenn. 400, 401, 14 S.W.2d 51. At most the judgment was voidable and not void and it is only where the judgment upon which the execution issued was void that motion to quash will lie. Mabry v. State, 17 Tenn. 207; Roche...
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