Bains v. Perry

69 Tenn. 37

• Court: Tennessee Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The complainant seeks to set aside as fraudulent and void a decree against him in the Chancery Court,, rendered in favor of W. E. Cox, and a judgment against him at law, recovered by defendant, ¥m. Perry, and to remove the cloud upon his title to the land in controversy, occasioned by sales thereof under the decree and judgment, at which sales the defendant Perry became the purchaser. Stress is laid upon various matters by which the proceedings at law and in equity are sought to be impeached, and a large mass of testimony has been taken accordingly, but the validity of the proceedings on their face is necessarily involved, and forms the first subject for consideration. The bill of W. E. Cox was filed on September 9, 1865, and is an original attachment bill based upon the allegation that the defendant Bains “is a non-resident of' the State, or so absents or conceals himself that the ordinary process of law cannot be served upon him. The attachment was levied on the land in controversy on October 10, 1865. The entries on the rule docket,, as well as the date attached to the order itself, namely, September 15, show that the order of publication was made before the levy of the attachment. The order itself simply requires the defendant, being a non-resident of Tennessee, to appear at a given date. It does not state the fact that a levy of the attachment had previously been made, nor that the suit was by attachment of property, nor does it anywhere use the word attachment. Under the Code, secs. 3521, 3522, the publication should follow the levy of the attachment, and even if it be not indispensable to recite the fact of the levy, it should certainly show that the defendant was required to appear and answer a suit commenced by attachment of property. Riley v. Nichols, 1 Heis., 16. The levy of the attachment and subsequent publication are in lieu of personal service of process, and essential to give the court jurisdiction. Ingle v. McCurry, 1 Heis., 26. A decree rendered without these pre-requisites is void, and the complainant is therefore entitled to the relief sought, as against the decree sought to be impeached. The action at law was commenced on the 14th of November, 1865, by original summons returned not found, and by an original attachment sued out at the same time, and there is nothing in the record to show an election by the plaintiff to proceed under one rather than under the other. For, while the plaintiff has failed to sue out an alias summons or an attachment under the Code, sec. 3466, be has equally failed, so far as the record shows, to make publication under the original attachment, in accordance with the provisions of the Code above quoted. There is no evidence embodied in the record, nor any entry upon a docket or minute book, nor any recital in the judgment, which shows that publication was made. The judgment is therefore void. Under an ejectment bill such as this is, laches cannot be imputed to the complainant by any lapse of time short- of that which would bar his right to recover the land by ejectment at law. The complainant is entitled to the relief sought, and as incidental thereto, according to the well settled rule of equity to close the entire litigation, an account of the rents .and profits since the defendant Perry has been in possession, the defendant to be allowed for taxes paid, and for the permanent enhancement of the value of the land at the surrender of the possession by reason of improvements made by him. The defendant Perry will pay the costs.