Jones v. Moore
| Decision Date | 22 December 1900 |
| Citation | 61 S.W. 81 |
| Parties | JONES v. MOORE. TUCKER v. SAME. |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Dekalb county; M. D. Smallman, Judge.
Actions by Brunette Jones against J. B. Moore, receiver, and by one Tucker against the same. From judgments for defendant, the plaintiffs appeal. Affirmed.
Webb & Cantrell, for appellants. Wade & Robinson, for appellee.
These cases were heard together. They are actions of replevin. In each case the court below entered a judgment of dismissal and for the value of the property replevined, upon the ground that it was taken under the writ from the control and possession of a receiver, appointed by a court of competent jurisdiction, in a cause then pending, and that the action was instituted and the writ executed without the consent of that court. This action is made the basis of error assigned by the respective plaintiffs in error. These causes must be considered by us on the record entries alone; for while, in each transcript, we find what is entitled a bill of exceptions, yet in neither can the plaintiff in error avail himself of it as such. In each the trial judge gave 30 days from the date of overruling the motion for new trial to prepare a bill of exceptions. In the case of Tucker v. Moore, the record shows that more than 30 days elapsed before the bill of exceptions was filed. This was too late. Bettis v. State, 103 Tenn. 339, 52 S. W. 1071. In the case of Jones v. Moore, the record fails to show when the paper purporting to be a bill of exceptions was filed. Under chapter 275 of the Acts of 1899, filing within 30 days is essential, and this is defined to be a delivery of the paper in question "into the actual custody of the clerk, to be kept by him among the files, subject to the inspection of the parties." Enc. Pl. & Prac. 923. And the record must affirmatively show that this was done. Muse v. State (present term) 61 S. W. 80. The mere bodily presence of the paper in the transcript, without more, is not sufficient. The result is that we are bound to assume that the trial judge was warranted in finding that the property involved was wrongfully taken out of the custody of a duly-appointed receiver without the permission of the court appointing him. Such a proceeding cannot be tolerated. It is well settled that property in the hands of a receiver is in custodia legis, and cannot be interfered with by process of another court. Morrill v. Noyes, 3 Am. Law Reg. (N. S.) 21, cited and...
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