Patterson v. Tate
| Decision Date | 26 July 1919 |
| Citation | 213 S.W. 981,141 Tenn. 607 |
| Parties | PATTERSON v. TATE, SHERIFF, ET AL. BARNWELL v. TATE, SHERIFF, ET AL. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Suits by L. G. Patterson and Louis Barnwell against M. G. Tate Sheriff, and others, wherein Katie Gaines, a defendant, in her own right and on behalf of her minor child filed a cross-bill. From a decree dismissing the bills, and against complainants and their sureties, also dismissing the cross-bill, complainants and cross-complainant appealed to the Court of Civil Appeals, which affirmed, and complainants and cross-complainant petition for certiorari. Decree of the Court of Civil Appeals affirmed.
Norman M. Byars, of Memphis, for defendants.
Some time prior to August 8, 1910, Eddie and Clarence Gaines, two minor children of Katie Gaines, were killed by the Illinois Central Railroad Company in Shelby county, Tenn.
One Sam Carson qualified as the administrator of the estates of said two deceased children in the county court of said county on August 8, 1910, executing an administrator's bond, with L. G. Patterson and Louis Barnwell as sureties, in the sum of $4,500, and as such administrator received from the railroad company the sum of $2,000 in full settlement of claims against the railroad company growing out of the killing of his said intestates. He made his final settlement with the clerk of the probate court of Shelby county on November 14 1912, which showed a balance due the estates of said decedents amounting to the sum of $1,303.59.
On October 28, 1913, an order was made by the court directing the administrator to pay the sum due from him to said estates into court. Carson having failed to comply with this order, on motion of the clerk, of which Carson was given proper and legal notice, an execution was ordered to issue against said administrator and his sureties on his administrator's bond for the balance adjudged to be due said estates. An execution was issued in accordance with said order, and was levied on certain real estate belonging to L G. Patterson, and certain personal property belonging to Louis Barnwell, both sureties on the bond of the administrator, as heretofore stated, to satisfy the balance adjudged to be due said estates from said administrator.
Thereupon Patterson and Barnwell filed separate bills in the chancery court of Shelby county against M. G. Tate, sheriff of said county, and John C. McLemore, clerk of the probate court of said county, the Solvent Savings Bank & Trust Company, and Katie Gaines, mother of said Eddie and Clarence Gaines, seeking to enjoin the sale of their respective properties by the sheriff under said execution, and to enjoin the issuance of further executions in the future having for their purpose the collection of said balance adjudged to be due the estates of said decedents by the probate court.
The bills alleged, among other things, that the bond executed by Carson as such administrator was void in so far as complainants were concerned for the reason that at the time it was presented to them by Carson for their signatures as sureties it had not been filled out and was merely a blank printed form of an administrator's bond, and that they signed the same without the blanks being filled in with respect to names and amounts, and it was subsequently filled out by Carson or his attorney and delivered to the clerk of the probate court of Shelby county without complainants having ratified or approved the same.
It was further alleged in said bills that the order or decree of the probate court was void as to complainants, because the court was without jurisdiction to make the same, no notice having first been issued and served upon complainants of the motion against said administrator and complainants, as his sureties, citing them to appear and show cause why such order or decree should not be rendered against him.
These bills were demurred to by the defendants, and the demurrers were overruled by the court with leave to the defendants to rely on same in their answers and at the hearing.
Thereupon the defendants filed answers relying upon said demurrers therein, but, the demurrers not having been called up or disposed of at the hearing, they must be treated as waived. The answers of defendants denied the allegations of the bills as to the invalidity of the administrator's bond, and the want of jurisdiction in the probate court to make said order or decree against the administrator for the alleged balance due the estates of his intestates, and also the allegations of said bills that the probate court was without jurisdiction to order an execution against complainants, as sureties of said administrator, for the balance due from said administrator.
The defendant Katie Gaines, in her own right, and on behalf of her minor child, James Gaines, filed a cross-bill, seeking a decree on said administrator's bond in behalf of herself and said minor for the balance alleged to be due, which amount the cross-bill alleged that she and her minor child were entitled to recover of the administrator and his sureties as the heirs and next of kin of the two decedents, Eddie and Clarence Gaines.
Demurrers were interposed to the cross-bill filed by Katie Gaines by the cross-defendants, Patterson and Barnwell, which demurrers were overruled by the chancellor with leave to said cross-defendants to rely on same in their answer and at the hearing, which was done, but said demurrers were never called up, and the action of the chancellor invoked upon them. They will, therefore, also be treated as waived.
Cross-defendants, Patterson and Barnwell, in their answers to said cross-bill interposed the plea of the statute of limitation of six years in bar of their liability on said bond. They also interposed a plea of non est factum by which they challenged the validity of said bond upon the same ground alleged in their original bills. The answers further averred that the fund collected by Carson as administrator from the railroad company constituted no part of the estates of his intestates, and that the sureties on his administrator's bond were not liable for such fund.
The two causes were consolidated in the court below. Proof was taken and upon final hearing the chancellor held that the decree for $1,303.59...
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