Williams v. Pile

• Decision Date: 17 March 1900
• Citation: 56 S.W. 833
• Parties: WILLIAMS v. PILE.
• Court: Tennessee Supreme Court

56 S.W. 833

WILLIAMS v. PILE.

Supreme Court of Tennessee.

March 17, 1900.

Appeal from circuit court, Fentress county; W. R. Hicks, Judge.

Bill by E. J. Williams against J. J. Pile. From a decree of the court of chancery appeals reversing a decree dismissing the bill, defendant appeals. Affirmed.

Conatser, Case & Turner, for appellant. Young & Frogge, for appellee.

BEARD, J.

The bill in this cause was filed to enjoin an execution for a very large amount of costs accrued in the progress of the suit of Pile against Williams, pending in the circuit court of Fentress county. It is averred that, when the above-mentioned case was called for trial in that court, the complainant, who was there defendant, being then present with his counsel and witnesses, announced himself ready, but that the plaintiff, who is here defendant, stated that he was not ready, and "that thereupon the presiding judge directed the clerk to continue the cause without terms until the next term of the court." It is further alleged that after the disposition of the case the complainant and his witnesses left the court and went to their respective homes, and thereafter an order was entered on the minutes of the court continuing the cause as upon application of the present complainant, and upon payment of all costs, giving judgment against him for the costs, and awarding execution therefor. The bill charges that this judgment was entered by fraud, accident, or mistake, and that no such judgment was obtained; and the chancery court was asked by decree to annul the same, and to perpetually enjoin the execution issued in pursuance of it. The chancellor dismissed the bill on demurrer. The cause has been appealed, and this action of the chancellor is now assigned for error.

It is true the chancery court would have no jurisdiction to revise the action of the circuit judge in granting a continuance or awarding costs thereupon. That, however, is not this case. On the contrary, the present is one where an order of continuance is made, accepted by the party now complaining, in good faith, as the disposition of the cause for that term, and then the entry of another order, different in material respects and oppressive to the last degree, without notice to him or to his counsel, until called to his attention after the final adjournment of the court, by an officer with an execution issued thereon. Whether this last entry was the result of fraud, accident, or mistake, we do not doubt the...