Pond v. Trigg

Decision Date30 April 1871
Citation52 Tenn. 532
PartiesB. M. Pond et al. v. Martha L. Trigg.
CourtTennessee Supreme Court

OPINION TEXT STARTS HERE

FROM SHELBY.

Appeal from First Chancery Court of Shelby County. R. J. MORGAN, Ch.

B. M. ESTES for Complainants.

L. D. MCKISSICK for Defendant.

SNEED, J., delivered the opinion of the Court.

A decree in this cause was rendered in the First Chancery Court of Shelby county, on the 6th October, 1870, in behalf of complainants and against the defendant for the sum of $5,394.85. After stating the rights and equities of the parties, the decree proceeds as follows: It is therefore ordered and decreed by the Court, that the complainants in the first of these causes, B. M. Pond and wife Elizabeth A. Pond, recover of the said M. L. Trigg said sum of $5,394.85, and the costs of this suit, for which let execution issue as at law. A separate order having been made in the case of Lucy J. Stockley v. M. L. Trigg, et al., renewing the order of reference heretofore entered herein, it is on motion ordered that the former order consolidating these causes be vacated, and that the last named cause proceed upon the order of reference, and that this decree be entered as a final decree in this cause.

From this decree there was no appeal prayed, and no exception was taken to it at the term at which it was rendered. An execution tested of that term was issued upon the decree, and was levied by the Sheriff of Shelby county upon real estate, as the property of the defendant, on the 24th of March, 1871, but according to the return of the Sheriff, “too late to advertise according to law.” At the term next succeeding the term at which the final decree was rendered in the cause, and on the 13th of April, 1871, the following order was made and entered of record in the cause:

“In this cause upon motion and it appearing to the Court that on the 22d day of March, 1871, a writ of fieri facias issued to the sheriff of Shelby county, upon the decree entered herein at a former term of this Court in favor of B. M. Pond and wife Mrs. E. A. Pond, formerly E. A. Walker, which came to the hands of said Sheriff on the 23rd day of March, 1871, and upon which he has made the following return:

‘No personal property to be found in my county upon which to levy this fi. fa.; levied the same on the following described real estate, lying and being in Shelby county, Tennessee, and known and designated upon the plain of the city of Memphis, as part of lot 74, north-east of Adams and Front row, fronting twenty feet on Front row and running back between parallel lines sixty-nine feet parallel with Adams street, east, with all improvements thereon, as the property of Martha L. Trigg.

+------------------------------------------+
                ¦               ¦Marcus J. Wright, Sheriff.¦
                +---------------+--------------------------¦
                ¦March 24, 1871.¦By Geo. R. Powell, D. S.' ¦
                +------------------------------------------+
                

‘The above levy made too late to advertise according to law.

+------------------------------------------+
                ¦               ¦Marcus J. Wright, Sheriff.¦
                +---------------+--------------------------¦
                ¦March 24, 1871.¦By Geo. R. Powell, D. S.' ¦
                +------------------------------------------+
                

It is therefore ordered by the Court that venditioni exponas issue to the Sheriff of Shelby county, commanding him to proceed and sell said real estate, or all the right, title and interest of said defendant there, as the law prescribes.”

On the 21st of April, 1871, it being one of the days of the term at which the last mentioned order was granted, the following order granting an appeal was entered in the cause:

“The defendant Martha L. Trigg, comes and prays an appeal to the next term of the Supreme Court to be held at Jackson, from the decree entered herein April 13th, 1871, directing a venditioni exponas to issue for the sale of the real estate mentioned herein, which appeal is allowed upon the defendant entering into bond and security for costs. And the bond having been executed, the appeal is perfected, and the venditioniexponas issued herein on the 18th day of April, 1871, is hereby suspended.”

It will be observed that this appeal was prayed and granted during the sitting of this Court at its present session, and that the appeal is granted to the next term of this Court, which by law is fixed for the first Monday in April, 1872.

The complainants have brought the transcript into this Court, and move to dismiss the appeal because the same was improvidently granted. It is urged on the part of the complainants, that upon the bond being given, and the appeal prayed and granted, the cause is at once transferred to the jurisdiction of this Court, and that they have pursued their only remedy in bringing the transcript here and asking a dismissal of the appeal. And they insist that when a cause is improperly here, the proper practice is to have it stricken from the docket, if upon the docket; and that if an improper and unlawful appeal is taken to the next term of this Court pending a term thereof, that the appeal may be heard here at any time, upon motion and upon production of the transcript, to show that said appeal was improper and unlawful, and to ask this Court to vacate and annul the same; that the hardship resulting to complainants is that the defendant is permitted to suspend and postpone a money decree for nearly twelve months upon a mere bond for costs, and upon an appeal from a mere decretal order in execution of the final decree which had been acquiesced in by the defendant. On the other hand, it is urged that the cause is not here at all, and it can not be in this manner brought here by the appellee until the term is ended at which the appeal is granted. It may be observed here, however, that the record does not show that the First Chancery Court of Shelby county was in session at the time this motion was entered; and that while this Court is bound to know judicially the regular terms of inferior Courts as fixed by law, yet that judicial knowledge does not extend to the length and duration of their sessions. The appellant refers, in support of his position, to the several cases of Davis v. Jones, 3 Head, 603;Staggs v. State, 3 Hum., 372;Clark v. Larry, 3 Sneed, 77; and Ferrell v. Alden, 2 Swan, 77; that the cause is not in this Court until after the expiration of the term at which the appeal was taken. In a...

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1 cases
  • Savely v. Phillips
    • United States
    • Tennessee Supreme Court
    • August 17, 1940
    ...to the "succeeding term" was utterly void. In support of this proposition able counsel directs our attention to the case of Pond v. Trigg, 52 Tenn. 532, 5 Heisk. 532. We have critically examined and analyzed that We do not interpret the opinion of the court in the same way as does counsel f......

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