Nelson v. Loudon County

• Decision Date: 23 November 1940
• Citation: 144 S.W.2d 791,176 Tenn. 632
• Parties: NELSON et al. v. LOUDON COUNTY et al.
• Court: Tennessee Supreme Court

144 S.W.2d 791

176 Tenn. 632

NELSON et al. v. LOUDON COUNTY et al.

Supreme Court of Tennessee.

November 23, 1940

Appeal from Chancery Court, Loudon County; J. H. Wallace Chancellor.

Suit by Ned Nelson and another against Loudon County, Tenn., and others to enjoin execution upon a judgment entered on a workhouse bond. From decree for the complainants, defendants appeal.

Reversed and remanded.

Watkins & Watkins and Ben. B. Simpson, all of Loudon, for complainants.

Dannel & Fowler, of Loudon, for defendants.

DeHAVEN Justice.

Jim Smith was indicted at the July 1928 term of court for the unlawful transportation of intoxicating liquors in quantity of one gallon or more. He entered a plea of guilty of "V. B. D. L." (violation of bone dry law). The jury fixed his fine at $250. The court pronounced judgment that Smith "for his said offense shall forfeit and pay to the State of Tennessee for the use of Loudon County, a fine of $250.00, a State and County expense fee of $5.00 each together with all the costs of the cause. And for further punishment thereto shall be confined in the workhouse of Loudon County for a period of ninety days, ***."

After serving the workhouse sentence, in order to secure the payment of the fine and costs adjudged against him, Jim Smith, as principal, and Ned Nelson and Rufe Thompson (complainants herein) as sureties executed a workhouse bond to the State of Tennessee for the use of Loudon County, in the sum of $285.25, dated May 29, 1929, payable in installments of $12 per month, and the bond authorized and empowered the Circuit Court Clerk of Loudon County to confess judgment thereon against all parties thereto before any justice of the peace of Loudon County upon any installment remaining past due for ten days. On November 14, 1929, there was paid on the bond the sum of $24, leaving a balance of $265.25. After having mailed notices at various times to all the parties liable on the bond, on August 30, 1938, the circuit court clerk confessed judgment on the bond, for the balance due, against all the parties on the bond, including complainants, for $265.25.

Complainants on November 28, 1938, filed their bill herein against Loudon County and Perry Guider, sheriff of that county, to enjoin execution upon the judgment mentioned above and seeking to have the judgment declared void, upon the ground that the bond at the time judgment was confessed thereon was barred by the six year statute of limitations.

Defendants by answer asserted, in substance, that the State of Tennessee being the real party in interest, action on the bond was not barred by any statute of limitation.

A certified copy of the fine and cost bill, made a part of the record, shows the following items paid: State Expense Fee, $5; State Tax, $5; Attorney General Fee, $5. And shows the fine of $250, and other items not paid.

At the hearing, the chancellor found (1) That the last installment under the bond matured more than six years before the confession of judgment; (2) the State of Tennessee had received all monies to which it was entitled under the law from the proceeds of the workhouse bond; (3) that the clerk of the court was not proceeding as an arm of the State in relation to a sovereign, public or governmental right and the confession of judgment was void as exercised more than six years after due date of the last installment, and the clerk's authority to confess judgment was revoked by the running of the six year statute of limitations. Pursuant to these findings the court decreed that the judgment on the workhouse bond was void and that execution thereunder be perpetually enjoined.

From this decree, defendants have appealed to this court and assigned errors.

It is first complained that...