Turner v. Collier
| Decision Date | 31 December 1871 |
| Citation | 51 Tenn. 89 |
| Parties | James J. Turner v. Susan Collier et als. |
| Court | Tennessee Supreme Court |
Appeal from a decree of the Chancery Court at Gallatin, September Term, 1867, THOMAS BARRY, Ch.
John W. Head & Son for complainant. On the authority of a sheriff, cited code 4093, sub-sec. 9: Crutchfield v. Robins, 5 Hum., 19;Lytle v. Eatherly, 10 Yer., 389; Venable v. Snoddy, Brownsville, April Term, 1868.
Execution was functus officio: Koger v. Donnell, 1 Head, 377; Code 3022; Smith v. Vanbebber, 1 Swan, 110;Evans v. Barnes, 2 Swan, 292; Shurer v. Green, 3 Col., 419; Craig v. Graves, 4 J. J. Marsh., 604. J. J. Turner with them cited in addition Code 4093, sub-secs. 2, 7, 9, and 22: Planters Bank v. Porter, 10 Hum., 316;Brown v. Allen, 3 Head, 429, 431; Henley v. Franklin, 3 Col., 472; Wingfield v. Crosby, 5 Col., 243; Clevinger v. Clevinger, 1 Heis., 104; Rankin v. Craft, Ib., 715; Leiper v. Jones, Nash., 1871; McBroom v. Wiley, 1 Heis., 58; 41 Ala., 103, 510, 548. Drake on Attachments: c. 7, sec. 184.
M. & B. T. Allen for Sheriff Love cited Code 3025.
W. S. MUNDAY for Defendant Collier.
This bill is filed by complainant against Susan Collier, W. S. Munday, R. C. Parker, administrator, etc., of John Parker, deceased, and George Love, late sheriff of Sumner county, together with several parties, his sureties on his official bond.
The bill charges, that Turner, on the 11th of March, 1861, recovered a judgment in the Circuit Court of Sumner County against Susan Collier and John Parker, for $1,019.83, and $11 costs.
That complainant ordered out an execution on this judgment, which was issued on the 3rd of September, 1861, and indorsed by said Love: “satisfied in full, April 14th, 1862,” and by D. H. Hart, Clerk of Circuit Court: “received State Tax and Clerk's fees, 14th April, 1862.”
It states further, that at what time the said execution was returned to the Clerk's office, complainant does not know, but supposes about the time of said entries.
It is shown by the bill, that at the same term of the court, at which Turner's judgment was obtained against Susan Collier and John Parker, Susan Collier recovered a judgment against Richard Parker for $860, and that complainant, and W. S. Munday, the attorney of Susan Collier, made” the following agreement, viz.: that said Collier would pay me (Turner) the difference between the two judgments, and that he would wait for the balance until the same could be collected off of Richard Parker;” that in pursuance of said agreement $150.76 was paid to Turner, November 16, 1871, and the same ordered to be credited on the fi. fa. against Susan Collier; and about that time complainant left for the army, and was never back in Sumner county until May, 1865, when he found the fi. fa. above spoken of.
The bill further states that complainant Turner never received any part of the money on his execution against Susan Collier and John Parker, except the $50.76, and that he does not know how said fi. fa. was satisfied, or in what kind of currency, or what became of the money.
The bill further charges that Susan Collier insists that she has paid off the judgment, and is released from the same; and that Love claims that he had received the amount due on the execution in Confederate money, “and has paid it over to the Clerk or some one, and is not responsible for the same.” It is claimed, that the execution was functus officio at the time of satisfaction, and very questionable whether there was any authority for paying or receiving money on the same; but that the execution being satisfied, he was compelled to come into a court of equity to have satisfaction set aside.
The bill prays for discovery, and asks that the parties answer this special interrogatory, “When and where was said money paid, if not on the 14th April, 1862, and by whom the same was paid, and in what kind of money the same was paid, and what has become of the money; and that they answer fully and particularly in reference to said transaction;” and then asks that the Court will make a decree, deciding who is bound for the said money, and for general relief.
Defendants Munday and Susan Collier answer and admit the recovery of the judgments, and Munday states the agreement between himself and Turner to have been, that Susan Collier was to pay the difference between her judgment against Parker, and the judgment of complainant against her; that the amount of that difference up to November 16, 1861, was $150.76, which made the two judgments precisely equal; and then Turner was ‘to wait for the collection to be made of Parker,” Both debts had been stayed under Act of 1861, declared unconstitutional at Jackson.
They say it was agreed, that at the end of the stay, an execution was to be taken out against Parker and his surety, and an effort made to make the money, but not to be issued against Susan Collier, until it was clearly ascertained that the money could not be made off of Parker; and if the money could thus be made or collected, complainant was to enter full satisfaction of his judgment against Susan Collier, less the costs, which she was to pay, that Munday left for the army, after the agreement aforesaid, and that Susan Collier, hearing that an execution for the costs alone, was in the hands of the sheriff, sent her son, and paid. They insist that she is discharged from the judgment; and that both executions were issued at the instance of the complainant; and that Susan Collier had given up the control of the judgment to Turner, and that the sheriff, when the judgment was collected, properly applied the proceeds, under the agreement, to the discharge of the debt due from her to Turner.
They say they know nothing of the kind of money collected or received by the sheriff, or what became of it.
They state, that the receipt of Love, the sheriff, to Parker, showed that the money was collected from Parker in December, 1861; and the reason the execution was not satisfied in full until 14th of April, 1862, was, that the costs had not been paid.
Respondent, Susan Collier, insists that she can not be prejudiced or affected by the kind of money received by the sheriff, as her judgment and execution were subject to the control of complainant, and he was not bound to receive anything but good money on the same.
There being no proof taken in the case, we have set out fully the statements of the bill and answer of Munday and Susan Collier, that we may settle first the rights of complainant, as against her. She is called on to answer the bill fully, and specially interrogated as to “where and when the money was paid, if not on the 14th of April, 1862, and by whom the same was paid, and in what kind of money the judgment was paid, and what has become of it.”
In reply to this, she answers distinctly, and states, in substance, that her judgment against Parker was under control of complainant, in pursuance of the agreement stated in her answer, and that she does not know what kind of money the debt was paid in, nor what became of it.
This answer is in direct response to the interrogatory of complainant; and, as he alleges that his judgment and execution are shown by the entries in the office, to be satisfied, which imports that the money has been paid; and the answer of Susan Collier fails to show any wrongful satisfaction on her part, or any liability remaining against her, complainant must fail of any relief against her, unless there is something in the case to charge her, beyond the statements of her answer.
It is insisted that the answer of defendant Love fixes this liability upon her, by showing the payment to have been made to him of the Parker debt, in Confederate money, and its appropriation to complainant's judgment against her, without any special authority to receive this kind of currency from complainant.
The rule on this subject is, “That the answer of one co-defendant is not general evidence against another:” Mitchell v. Nash, Cooke, Cooper's Ed., top p. 240, 241.
The rule, with its exceptions, is correctly stated by Mr. Greenleaf: “The answer of one defendant can not be read against another, generally, there being no issue between them, and therefore no cross-examination; but this rule does not apply to cases where the defendant claims through him whose answer it is proposed to read; nor to cases where they are jointly interested in the transaction in question, as partners, or others identified in interest, or when the respondent refers, in his own answer, to that of his co-defendant for further information, vol. 3, sec. 283. The reason in favor of the rule is stronger with us, where the co-defendant may, as a matter of course,...
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