Bloomstein v. Brien

2 Tenn. Ch. R. 778

• Court: Court of Appeals of Tennessee
• Decided: April 15, 1877
• Status: Published

Opinion

The Chancellor :

— These causes having been regularly called for hearing on the trial docket, the complainants-moved that they be remanded to the rules, upon the ground that one of the defendants in each case had not answered, nor had the bills been taken for confessed against him. The object of both bills is to enjoin the execution of a writ of' possession issued from the circuit court, upon the order of that court confirming the report of the tax collector of sales of realty for taxes under the act of 1873, and directing the sheriff to put the defendants in possession of certain lots as purchasers. Brien & Woodward were the purchasers of Bloomstein’s lot, and Brown of the lot of Cope and wife. Each bill attacks the validity of the tax sale. To each bill E. D. Whitworth, the sheriff, is made a defendant, because-having the writ of possession, in his official capacity, to be executed. In neither bill is any discovery or relief sought-as to him. He was, for the execution of the writs, the mere agent of the parties in whose favor and at whose-instance the writs respectively issued. No decree could be-had against him even for costs upon a pro confesso. McGavock v. Elliott, 3 Yerg. 373; Blanton v. Hall, 2 Heisk. 423; Montgomery v. Whitworth, 1 Tenn. Ch. 176; Hext v. Walker, 5 Rich. Eq. 5. The same would be true of a private agent. Boyd v. Vandenkemp, 1 Barb. Ch. 287. He was an utterly unnecessary party, whose presence could not-affect the case the one way or the other. Edney v. King, 4 Ired. Eq. 474; Lackay v. Curtis, 6 Ired. Eq. 474. To allow him to be treated as a party by the complainants, fox the mere purpose of delay, cannot be tolerated. A pro confesso against him would be a mere form. Wright v. Wilson, 2 Yerg. 294.

Upon examination, I find in the Bloomstein case that, although included in the injunction, no process of subpoena, has ever been taken out against the defendant Whitworth, the bill having been filed July 17, 1875. This is an abandonment of the suit as to him. In the case of Cope and wife he is included in the subpoena, which he “excepts,” but not in the injunction. This bill was filed on the 21st of July, 1875. The answer of the real defendants was filed on the 29th of June, 1876.

The motion must be disallowed.