Stewart v. Mitchell

• Decision Date: 30 April 1873
• Parties: John J. Stewart v. James H. Mitchell.
• Court: Tennessee Supreme Court

57 Tenn. 488

John J. Stewart

v.James H. Mitchell.

Supreme Court of Tennessee.

April Term, 1873.

FROM M'NAIRY.

Appeal from a decree of the Chancery Court, March Term, 1872. HON. GEORGE H. NIXON, Ch.

HUDDLESTON, for Complainant.

J. F. MCKINNEY, for Defendant.

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

This is a bill to declare void a sale of the complainant's land, made under attachment proceedings before a justice of the peace. The relief was granted, and the land restored to the complainant. The defendant has appealed.

We entertain no doubt as to the correctness of the decree. The proceeding before the justice was an original attachment, without service of process, and no appearance of the defendant in the attachment was entered. The attachment was issued on the 8th day of October, 1866, levied on the 23d, and judgment rendered on the 27th of the same month, without stay of proceedings or publication; besides the affidavit was insufficient to authorize the issuance of an attachment under our decision, as it does not specify the nature of the demand. It is clear, under our authorities, that this proceeding was void, and the purchaser acquired no title to the land.

It appears that complainant applied for writs of certiorari and supersedeas, but his petition was dismissed upon defendant's motion in the Circuit Court, and this judgment was affirmed in this court. The ground of this motion does not appear in the record, but we hold that this judgment is not an adjudication of the questions involved in the present case. It was simply a dismissal of the certiorari and supersedeas and adjudged nothing except on the facts stated. The petitioner was not entitled to the rents.

Let the decree be affirmed with cost.