Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-10-13
OFF-ICIAlL.
0pinians q the Supreme oourt pr the state
OF Tonmeasees delivered at JaeAeSAs -
April Term. SOS. es.c 4-rii 4-- & -

0pinisas q the Supreme Court ef the state
April Ternas 1858. ~ .rii -- 1
sHu Pegusss y. g BUou Clerk Afuason Circuit Court
The predecessor Of BON tosk the note Of sui
who vas the purchaser ia raot Of land Del ngh g
to he heirs Of Harbert NeWsam sold Tor y, 'uoh5
with Pegues surety, S. sos due on The f-lO aay OIL
January, 1883 payable to himself. and successors
as elers for the use, SC. On the TN gay OF jan
uary, 1858, the note not having b en- psl1' JUG
Inebt was rendered on melton, and Without noiiee'
by the Circuit Court sgainstths parties, and they
appealed 10 this Court.
l.-That the note was properly taken 20 lne ac'
ing Clerk sni his successor, and the latter eoulo
recover judgment upon it.
3-The Circuit, as vel as the Chaneery Court,
where such sales are made, csn render judgment
against he purchasers for failing to pay, when que
the noIes given by tht N Al such sales ms case
Of Blakemore vs. Baker, 2 Swan, 542 baseo upon lne
doctrine Of Desdrick vs. Smith. s Hump!' l4o' nut
ly maintains he power of court Of equity 70 ADOPT
til, seminary remedy to compel the PHFehaser 70
peri rm his eontrac; and these eases hold, that II
would be Objectionable and erroneous resort 10 any
other Ceurt than that in which the sale maee' ior
the purpose o. enforcing payment AS tne PuTc1s7
ser has beeanea party 10 that suit be - haoie oy
notion. or petition, in the same and that without
notice After these ease- AL hat remains 10 De
setted is whether the Cir cult Courts have The same
power in this respect, in regard 10 sales msde py
them.
And we think they have, by fair construction
Of The stafule s oouferFing this power. we have
Legislative construction 10 the effect IN 1907 IN
\ 1919, CD 1856 concurrent power vas given to the
County Court, sell land IN certain cases. and Dy
the a Ct Of 1882 CHI 90, sec. 1, the same power -
given to the County Court, 'toreader Ja4gme seo
! award execution, that the Circuit and Chsncery
Courts now have in such cases +.t
This clause clearly shows, that the Legislature
understood they had given tbs same power TO eae9
CourL-C1reuit and Chanoery-by previous acts, TO
render jud gment upon respective sale notes. IL
is true this last prescT be five days previous no
oe of The motion for jud emen but IS that was bot
REQUIRED before in the other Courts 1t cannot by
construction extend to Them. II it had been soin-
tended it would surely have been eXpusad, e the
decisions which had been tds on that subject were
known to them The argument, thai, 81 1t was
necessary to pass a special act to authorize the
County Court to enter judgment by motion IN their
cases the power did not exist in the Circuit Court
by virtue simply of the Act of 1855 giving 1t con
current iuri sdlction with The ChaDcery Court IN
sucb cases is plausible as the Act Of l849 gave the
County Court, concurrent" jurisdiction with the
former; but sill it hOUgh necessary to pass the
Act ofl852 specially comforting this power.
/ But this inference is Pehuued by the above ex-
tract from the act as the jurisdiction of the Circuit
Court to give such Judgment is expressly recognized
therein But after all, The passage Of the act IS
/ not by any means conclusive, that The same power
did not exist without it, and that it's only effect was
to require the FIVE days notice in that particular
| Court.
| The fair construction Of the Act Of 1885, giving
the County Court concurrent jurisdiction with the
Chancery Court these sales, Is, that the neees
sary incidents to carry out aud make the proceed
ings effecual and complete, which the enc tribunal
POSSESSED as an inherent power, was communicated
4 to the other. There could De no good reason for
sending the notes 10 another Court to collect, pre-
vous to divesture of title, which would have 10 be
done BY the Court ordering the sale after the pay
I meut Of the consideration. This construction is
certainly most convenient and least expensive TO The
parties; and there is decision Of which we are
/ aware to the contrary.
/ The question made Ia relation to small mistake
less than one doar-in counting the interest, will
| not be noticed by Court csiDg equity juris-
diction as a ground for reversal, Whatever might
| be its effect in proceeding at law
question is made as 10 the proper rate OF inter-
est on affirming in this case; whether it should be
! six. or twelve and a half per cent. This depends
on the construction TO be gives 10 the Act of 1923,
Oh 81 Sec The latter part Of the sec ION Is very
bread-''in all appeals hereafter taken from an in
ferior jurisdiction is affirmed the rate OF interest
shall be Welve aud half per cent. 1t was held IN
the case of Trainor Skein, 10 Gerger, 3G9 that
proper construction Of this whole section, taken
together would ooufue it TO appeals, SC from courts
of law, and it did not extend TO appeals from de-
cree of q court Of equity To his case the courts
have ever since conformed But the reason Of that
case does not apply TO the question nov presented
That refers 70 the DEGREES settling the rights Of
parties in equity proceedings, not TO case where
notes or bonds have been taken under the direction
of the Court and judgments rendered upon
them as an incidental power TO carry out and efec
tuate their proceedings instead Of sending the party
out TO another Court for judgment In such case
as this we think the act applies, and the party is
entitled 10 the rate Of interest given by it.
The decree will be in all things affirmed
CARUTHERs
Test: NJ D. WELoH, Clerk and Master.