Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-05-08

and the record further shows that the
cause was heard upon the bill and or
der pro cOnfeSs0 taken herein.
There is nothing in this objection.
The next objection is that there was
no proof of the execution of the
notes-nOne was necessary.
The bill alleges the Indebtedness of
defendant TO complainant by notes,
and describes the snote5 with great
particularly.
The bill was taken for confessed, and
thereby all its allegations admitted to
be true.
Besides, to render proof of the exc
cutiOn of the notes necessary, their
execution must have been denied IN
der oath, which was not done in this
case.
We are unable to perceive that the
fact that the practice should be differ
ent in cas- of a pro c0nfeSSO based
upon due publication from that in
case it is based upon personal ser
vices. The levy of the attachment
and publications are in lieu of persO-
nal service.
There is nothing in this objection.
Code (sec. 1926 provides, that if de-
fendent fail to appear, the plaintiff
may take Judgment in the same man.
ner if there had been personal service.
The next objection is that the order
of publication required the defendant
to appear at the November term, 1868,
of said court, within the three first
days of the term commencing on the
ID Monday in November, 1865, and
the decree wa pronounced on the 9Th
of Decem1 er fOllowing-and we are
asked if (nis was error.
1t would doubtless have been errO-
neOuS 10 have taken a decision before
the party WAS required to make his
appearance, but we are unable to see
any error in taking a decree after he
had made default. There is nothing
in this.
We are asked, when does a cause
stand for hearing, in view of the pro-
visions of Il statutes, allowing each
party four months to take prf in
chief, and two months for rebutting
proof.
We answer: Those statutes have
no application to a case like the pres
ent, and in Ease an order pro cOnfeSSO
is taken-the bill is taken for con-
fessed-because of the default of the
defendant, the cause stands for hear
ing Immediately thereafter.
The next objection is that no stay
of Judgment was allowed as required
by sec. %, chap. l, of the act of 1894,
and by sec 1913 of the Code.
Sec. 1927, of the Code, under the
head of Mode of Proceeding in At
tachment Cases" provides
Where the defendant does not APP
pear, the court may, and a justice
shall, stay final judgment, or DEGREES,
not exceeding twelve, nor less than
six months, from the times of the re-
turn"
Sec. 1923 provides
Where the attachment is sued
out, because the defendant is a nom
resident, the stay shall be allowed,
unless sufficient eauSe appear to the
contrary"
The provisions of these sections
have been literally complied with in
this case.
The attachment was returned duly
executed, to the November term, 1865,
of the Chancery Court, holden on the
~ AAOuAAN III 4NONOAAiDCA AOOEs
The decree was entered Dee. 9Th,
1865, at the same term; and upon its
face provided that unless the def, be-
fore or during the first three days of
the next regular term of the Court,
paid the amount of cOmplainant's re-
covery, the clerk should, after adver-
Using twenty days, sell the land at
tached, etc.
This was staying the execution of
the final decree more than six months
from the time of the return.
Besides this decree was not eXecu-
ted, and the 18th March, 1867, order
Of sale was upon motion of complain
ant, renewed and modified.
There IS nothing in this objection.
Curry vs.. Wright, and Wright vs.. Curry
In the Shelby Circuit Court.
Wright was indicted by the County
Court of Shelby county into the Office
of sheriff. Curry being the old sheriff,
and claiming that he was legally re-
elected to the same Office, filed this
proceeding in the Circuit Court in the
nature of a quo arGTT0ntO against
Wright, enjoining him from exercis-
ing the duties of sheriff. Before
Wright's induction into Office by the
county court, he filed a similar pro-
ceeding in the same court, claiming
the rffiee, and enjOining Curry from
exercising the duties of the office.
Both causes were heard at Cham
bers by the Circuit Judge on motions
TO dissolve the injunctiOns granted in
the causeS.
The Judge dissolved the Injunction
of Curry, and Wright being ia Office.
by his counsel, dismissed his own in
junction against Curry. Curry then
presented his petition to the Supreme
Court for a supersedeas against the or
ders of the Judge at Chambers: first.
superseding the order dissolving his
injunction restraining Wright from
exercising the duties of sheriff, and
secondly superseding the order of
the Judge granting the injunction in
favor OF Wright, and especially so
much of the writ Of that Injunction
issued By the clerk, as directed Curry
TO turn over the books and papers Of
the Office to Wright.
Mccain, Judge, delivered the opin-
ion Of the court verbally, as follows,
The Judges Of this court adhere re-
spectively to their opinions delivered
at Nashville at the last term, in the
case of the MeMinnville and Man
chester Railroad VS.. Higgins, McLain
holding that this court has no jurisdie-
ton, under section 1898 of the Code,
TO supersede aV6 interlOeutory order
of a judge made at chambers; the
other judges, constituting the major
ity of the court, holding that the court
has jurisdiction under said section to
supersede an order at chambers, pro-
the order or decree is of a nature
to be actively enforced against the
In this case the injunction of Curry
restraints Wright from exer-
the duties Of Sheriff, and does
not compel the active performance Of
anything, and hence the order dis
that Injunction cannot be SUI
perseded by this court.
The Injunction of Wright against
Curry being similar in its nature, the
order grantingit cannot be superseded
BY this court.
In reference to the writ Of Injunction
ssued by the court, it appears that so
much of this writ as directed Curry to
the books and pd0ers of the
,fice to Wright was NJ authorized
~ the 6at of the Judge, and, being
IA unauthorized act of a clerk, the
nnedy is not in this court at this
ysze of the proceedings.
bel VS.. Wickersham,
- resignation OF E. w. Wicker
administrator, beng made to