Smith v. Holmes

• Decision Date: 31 October 1873
• Citation: 59 Tenn. 466
• Parties: Thomas R. Smith v. James T. Holmes and another.
• Court: Tennessee Supreme Court

59 Tenn. 466

Thomas R. Smith

v.James T. Holmes and another.

Supreme Court of Tennessee.

October Term, 1873.

FROM SHELBY.

From the Second Chancery Court of Shelby County, October Term, 1872. S. P. WALKER, J.

WM. M. SMITH for Complainants.

ADAMS & DIXON for Defendants.

NICHOLSON, C. J., delivered the opinion of the Court.

The question in this case arises from the following facts, viz.:

In August, 1861, Holmes obtained a decree in the chancery court at Memphis against Dan Able for $4,183, from which decree Able appealed to this court, giving bond and security for the judgment and costs as required by law. The decree was affirmed in this court at the April term, 1871, and execution issued, and was levied on a tract of land owned by Able at the time of the decree in the chancery court, but which had been sold to the complainant before the decree of affirmance in the court. Able also acquired other lands which he had conveyed.

The present bill was filed to enjoin the sale of the land levied on. The Chancellor dismissed the bill for want of equity, and the complainant appealed.

The main question to be determined is, whether the appeal of Able from the decree of the Chancellor released, and destroyed the lien of, that decree, so that it did not continue in force until the affirmance of the decree in this court.

It was said by this court at the April term, 1871, at this place, in the case of Pond v. Trigg, that “it is the settled doctrine of this court that the broad appeal vacates the judgment of the inferior court; while the appeal in error merely suspends the judgment of the inferior court, and does not annul or destroy it. The simple appeal operates as an immediate transfer of the case to the appellate court, puts an end to the further control of the inferior court, and operates also to annul its judgment, which, in legal contemplation, ceases to exist after the appeal is granted.”

The distinction between a simple appeal and an appeal in error, so far as they respectively operate upon judgments or decrees, has been recognized by a succession of decisions in this court running through many years. The reason for this distinction is not so apparent. The bond required from the appellants, and the proceedings in the appellate court, upon an appeal in the nature of a writ of error, are the same as those prescribed upon an appeal. Code, sec. 3175.

A simple appeal from the chancery court to the supreme court secures a trial de novo in the supreme court, the same as if the suit had originally commenced there. Maskall v. Maskall, 3 Sneed, 208. And on an appeal in error, the court of error will review all material decisions in the cause. Campbell v Wallen, Mart. & Yerg., 266.

But although it is difficult to justify the distinction between the simple appeal and the appeal in error, and while the bond and the proceeding in the appellate court are the same in both, the one has been uniformly held to annul and vacate the judgment or decree, and the other only to suspend it.

The distinction is acted upon in cases in which one of the parties dies pending a simple appeal. This abates the suit and not the appeal. Maskall v. Maskall, 3 Sneed, 208; but if an appeal in error be dismissed or abated, the judgment below remains in force. It operates in the same manner as a writ of error and supersedeas. Thomasson v. Kercheval, 10 Hum., 324.

But the question here is, whether there is any distinction between the operation of the simple appeal and the appeal in error upon the statutory lien fixed by the decree or judgment appealed from upon land. Judgments and decrees are liens upon the debtor's lands from the time they were rendered. Code, sec. 2980. But these liens are lost unless execution is taken out and the lands sold within twelve months after the rendition of the judgment or decree,--sec. 2982; unless the sale within...