Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-27
SUPREME COURT OPINIONS.
September Term = Knoxville,
IN s1sla1S7O. ,zae o Il
Joseph u. Heislzeif, Attorney Gem
teral and Rcporfers ssla6

4
Joseph ID. Iaeisizcu, Attorney GEM
deral and RePorter. ssns5
~ cz44
d ...-s-. .-......,.. GAG
rl ~ No. IS. so51Esb selret !
]. G. Palmer, ct als.ys. J. b. Maf,ne, ct. ais
y On a Judgment against a purchaser at Cham
Gerry sale, without notice, the defendant pros
ecuted q writ OF error, on which the iudg4
lnent was afirme1 He then fled bill to set
up payments made before Judgment; held 70
1t seems that he would be entitled to recover
o. the parties 20 whom the payments were
made, the amounts paid and not applied by
Case explained. Smith vs. vanbib5er /
Swan, ITO.
From the Chancery Court at Maynards-
vile, 0. P. Temple, CHI, presiding.
w. p. Washburn for complainant, cited
Smith VI. Vanbibber. Swan, ITO. Ridge
way VS.. Blk. of Tenn. IL Hum. 523.
Brown and Cornick for respondents,
cited Code, 81, 321, 4,233; Lowe vs..
Morris, 4 Sneed, 60; Oyerton vs.. Bigelow,
10 Yer. AZ, %, SO; Allen VS.. Barksdale,
] Head, $40; Earles VS.. Esrles, Hesd.
$3.50; Whitesides VS.. Latham, 3 Col. SO;
Smith VS.. Deaderick, Hum. lat.
E. G. Camp, U. S. Dist. Att, with
them, cited Smith vs.. Deaderick, II Hum.
lat and 1876; Whitesides vs.. Latham, 2
col, 81; Yer. 80 and 1877; Tenn. 5lS;
Cooke, 175, IFS; 8 YER, GO, 10S; Sneed,
los; 8 East. 351; 4 Yer. 469-937; 5
Hum. 1853; 3 Hum. $50; Heis. Dig.
415 to AT; Sneed, 221; Nicholson VS..
Patterson, 6 Hum. 594; 8 Col 52S;
Walker vs. Walker, Col. /
OPINION.
The demurrer should have been sus-
tanned and the bill dismissed.
On the 4th day Of April, 1859, COM
claimants, with others, executed note to
the Clerk of the Circuit Court of Union
county, for the sum of six hundred and
seventy-six dollars, for the price of ne
gro slave, sold under q decree of that
court, in a proceeding for the sale of
slaves for distribution.
On the I'd of October, 1860, tie clerk,
to whom the note was given, having gone
out Of Office, his successor was ordered 10
report, instanter, as to the amount due on
said note. He reported the entire amount
of the note due and unpaid. The report
was confirmed and judgment rendered for
the entire amount of the note, with inter
est, making seven hundred and thirty-six
dollars and eighty-four cents. The mo-
ton was made without notice TO the COM
plainants.
Complainants, as soon as they were in
formed of the facts, presented a writ of
error to this court, when the judgment of
the Circuit Court was affirmed. Then
they filed bill in the Chancery Court of
Union county, seeking to enjoin an ex-
ecution from this court issued for the
collection of the judgment above men
toned, alleging that they had no notice
of the proceeding in the Circuit Court at
the time of the rendition of the Judgment
upon motion, that they presented a writ
of error as soon as a knowledge of the
facts came to them; also, that they, or
some of them, had paid to j. B. Malone,
one of the parties interested in the price
to be paid for the slave, on the 3Oth day
of August, 1860, eighty-seven dollars and
eighty eight cents, in part of said note,
and took his receipt. On the 4!h of July,
1859, they paid 10 Allen Hurst, then
Clerk, two hundred and twenty dollars
and forty-fiVe cents, and took his receipt,
and some time subsequent, paid to
HuIst, sixty-six <. dollars, which
Hurst entered as credit upon
the note. That at the time OF
the report the Clerk did not have the
note before him. 1t was then and still is
out of the record, having been lost OF
carried out by Hurst. All these payment:
were made before the rendition of the
judgment by the Circuit Court, and the
] bill prays to have them credited on the
| judgment of affirmance by this court.
The Chancellor granted the relief and or.
dered an account to ascertain the amount
of the several payments The cause il
here by appeal. 1t is not pretended thai
these facts were before this court by the
writ of error prosecuted from the judg
ment of the Circuit Court. 1t is showI
by the allegations of the bill, that at thu
time compliments brought the proceeding
to this court by writ of error, they knew
of the concealment of the payments, anC
that they had not been allowed as credit
upon the note and judgment. Then the,
could and should have awaited themselve
of these facts, in court of competen
and original jurisdiction, and at no tim
could the defenses have been available il
this court by appeal or writ Of error from
the judgment of the court below. 7,
have made this so the court would hsv
had to have gone outside the record an,
to have exercised original jurisdiction.
Although the payments may have BEEF
fraudulently concealed at the rendering o
the judgment in the Circuit Court, tn
fact that complainants did not, upon it
discovery, avail themselves of it, is negli
gence in them, and Court of CHANGER
cannot now relieve them. This holdin
is not in conflict with the case of Smitl
vs.. Vsnbibber, l Swan, 10. In ths
case judgment was rendered on motion
by this court, against Sheriff, for fail
ing to return an execution issued frOI
this court, the judgment was for the en-
tire amount of costs of the Circuit an
Supreme Courts, the Sheriff had no motto
of the motion, and there had been, befoI
it, payments made to the parties entitle
to a considerable amount, for which pay
ments the Sheriff was not credited in th
judgment. The fraud, in the COncea
ment of payments from the court, Wi
praciiced in this court. In the opinio
in this case, Judge TOtten says: "Whe
the execution proceeds from the Suprem
Court, it having no original jurisdictio
after the judgment on motion TO hear ar
determine the facts in question, the She
iff should have relief by injunction to Il
1 extent of payments actually made"
In that case, the Sheriff could not ha7
availed himself of the payments to whiC
2 he was entitled as credits, but was pr
f vented by fraud, unmixed by fault
negligence, on his part.
In this case, the judgment did not pr
! coed from the Supreme Court, and Il
' grounds of relief existing in Smith V
/. Vanbibber are not here.
: This is not, as insisted in argument,
e case of right, without remedy unle
! the parties are relieved in this suit. Tit
4 have still right of action at law again
5 the parties to whom they may have pal
3 money on account of the note, and viii,
: was not applied.
. The decree of the Chancellor is I
Q versed, the demurrer allowed and the b
q dismissed. P. TURNEY, Judge.