Kelton v. Snell, 84-145-II
| Citation | 689 S.W.2d 186 |
| Decision Date | 13 February 1985 |
| Docket Number | No. 84-145-II,84-145-II |
| Parties | William KELTON, Plaintiff-Appellant, v. Craig SNELL, Sheriff of Rutherford County, and Jo Ann Arnold, Clerk and Master of Rutherford County, Defendants-Appellees. 689 S.W.2d 186 |
| Court | Tennessee Court of Appeals |
Lionel R. Barrett, Jr., P.C., Nashville, for plaintiff-appellant.
Robert L. Estes, Reid M. Estes, Stewart, Estes & Donnell, Nashville, for defendants-appellees.
Plaintiff's action for damages, based upon the issuance of a writ of possession on the sale of his home by the clerk and master and an alleged breach of duty by the clerk following a stay of the writ by this court, was dismissed by the trial judge upon summary judgment.
The record of the prior case is not before us, other than the writ of possession issued by the clerk and master and the order staying the writ issued by this court. The writ of possession recites:
[B]y Decree in the above styled cause entered on the 19th day of June, 1981, the Court rendered judgment that the purchaser, Allen J. Gambill, have and recover immediate possession of the real estate involved which is described Tracts Nos. 2, 3 and 4, as described in the Clerk and Master's REPORT OF SALE which is incorporated in said Decree, and it was further ORDERED by the Court that the Defendants [plaintiff herein] and all persons holding under them are directed to vacate the premises on or before June 26, 1981, and if they have not, the Clerk and Master is directed to issue a Writ of Possession to put the purchaser, Allen J. Gambill, in possession.
THEREFORE, YOU ARE DIRECTED AND COMMANDED to remove the Defendants from the aforesaid property and put said purchaser in possession thereof and make due return how you have executed this writ.
The writ was signed by the clerk and master and filed on June 30, 1981. The return shows the writ was received by the sheriff's office at 1530 hrs. on June 30, 1981, and the return of service notes the writ was executed on July 2, at 0945 hrs.
On July 2, at 12 noon, on motion of plaintiff, a judge of this court signed an order staying "the issuance and/or execution of any writ of possession ... until after the expiration of 30 days from and after June 19, 1981."
In the complaint, plaintiff alleges the stay order was "ignored" by the defendant "who proceeded to sell plaintiff's property and placed Mr. Gambill in possession of his home", and further charges the clerk and master with "improperly" issuing the writ of possession.
The clerk and master filed a motion for summary judgment and tendered her affidavit, wherein she states in pertinent part:
On July 2, 1981, (at approximately 1:20 p.m.) a Ms. Faulkner from the Court of Appeals called to inform me that Judge Todd had signed a Stay Order in the Kelton case and that "they were bringing a copy of the Order to me." She asked me if I would, in turn, inform the sheriff's office that a Stay Order was on the way. Pursuant to her instructions, I proceeded to call the sheriff's office and talked to Mr. John Brown, who stated that they had already received information that a Stay Order had presumably been issued, and that when they received the Order they would be in touch with the Chancellor or the County Attorney.
Sometime later Mr. Kelton called to ask me to inform the sheriff of the Stay Order. He stated that he was at his home and that Deputy Vandervort, whose job was to give peaceful possession to Mr. Gambill pursuant to the writ, "threatened to arrest him if he entered his home." I informed him of Ms. Falkner's telephone call, and further told him that I had in turn advised the sheriff's office that a Stay Order was coming, but that we had not yet received it. Mr. Kelton informed me that he would bring me the Stay Order immediately and he did so sometime thereafter. Upon his arrival, which was approximately 2:50 p.m. or thereafter, he requested that I accompany him to his former residence with the Stay Order. I declined to do so inasmuch as I thought such conduct would be improper and outside my jurisdiction and duties; however, I did call and ask for Sheriff Snell, who was out of town. I nevertheless talked to Deputy Butner, who advised me that...
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