Glenn v. Moore

79 Tenn. 256

• Court: Tennessee Supreme Court
• Decided: April 15, 1883
• Status: Published

Opinion

Cooke, Sp. J.,

delivered the' opinion of the court.

The complainant recovered a judgment before a justice of the peace of Gibson county against one Davidson for about $220, upon which execution was issued and levied upon some 230 bushels of wheat. Davidson preferred a petition to the circuit judge, and obtained a fiat directed to the clerk of the circuit court ordering a supersedeas to issue, to supersede said execution, upon the petitioner executing bond with security as required by law.

The respondent, William Moore, -who was the clerk of the circuit court, carelessly and negligently and in violation of his duty as such clerk, took an unauthorized and insufficient bond, with insolvent security, and issued the supersedeas, by virtue of which the wheat was released by the officer making the levy, and disposed of by Davidson, who was insolvent. . .

The petition for supersedeas was dismissed by the circuit court, and this bill has been filed against the clerk, William Moore, and the other respondents, who are his sureties upon his official bond, seeking to have an account of the amount and value of the wheat so levied upon and released, and a .decree for the same, upon the ground of the failure of said Moore to discharge his duty as such clerk according to law and the requirements of his official bond, by not taking and requiring a good and sufficient bond, with solvent and responsible sureties, before issuing said supersedeas.

There was a demurrer to the bill, which was overruled, and the respondents required to answer. Proof was taken, and account was ordered according to the prayer of the bill, as to the amount and value of the wheat levied upon and released, and a report in obedience thereto by the master, which was confirmed, and a decree rendered- against the respondents for the amount so ascertained, from which they, or some of them, have appealed to this court.

The only question which is now insisted upon was raised by the demurrer, the cause of demurrer assigned being “that a court of equity has no jurisdiction of the subject-matter of this bill, the same being only cognizable at law,” etc.

This raises the question as to whether this case falls within the exceptions of tthe act of 1877, ch. 97, entitled an act to increase the jurisdiction of the chancery court, the second section of which act is as follows: “ That from and after the passage of this act, no demurrer for want of jurisdiction of the cause of action shall be' sustained in the chancery court except in cases of unliquidated damages for injuries to person, property or character.”

The facts of this case do not bring it within the above exception, or constitute an injury to property within the meaning of said act. By the levy of the execution the title to the specific property was vested in the officer for the satisfaction of the judgment. By reason of the failure of the clerk to discharge his official duty, it was released and lost, and by virtue of the' obligatory force of his official bond, the complainant became entitled to recover of him and his sureties, the respondents in this cause, the value of the wheat, and which might, under the provisions of said act, be sued for and recovered in a court of chancery.

This case is very easily distinguishable in its facts from the case of Ramsey v. Temple, 3 Lea, 252. Here the liability was fixed, and the complainant’s right to recover of the defendants the value of the specific property was clear; and a court of chancery and the mode of procedure therein was well adapted to tbe ascertainment of that value. None of tbe inconveniences or objections to tbe jurisdiction pointed out or suggested in tbát case can apply to tbis, and that case went to tbe utmost verge of legitimate judicial construction, and we cannot extend it further.

Tbe demurrer was properly overruled. There is no error in the decree of the chancellor, and it will •be affirmed with costs.