Greer v. Chickasaw Land Co.

64 S.W. 12, 107 Tenn. 46

• Court: Tennessee Supreme Court
• Decided: May 4, 1901
• Status: Published

Opinions

WilKes, J.

This is a petition for writs of certiorari and supersedeas. On the motion of the land company the Court below dismissed the petition because of the long delay in bringing it, and the petitioners have appealed, and insist that upon the facts disclosed in the petition the Circuit Judge erred in dismissing 'it.

It is admitted that the petition on its face states merit, and shows the judgment to be unjust, but it is not conceded .that on the trial the judgment will be shown to be unjust. The facts necessary to be referred to, as stated in the petition, are that petitioners bought from Napoleon Hill the privilege of cutting, some timber from his lands near Memphis. Through no fault of the plaintiffs, but rather through the fault of the defendant’s agent in incorrectly pointing out the lines, the petitioner crossed over Mr. Hill’s line and cut $35 worth of timber on the lands-of the Chickasaw Land Company, which adjoins the lands of Mr. Hill. ' On' this fact becoming known to petitioners, they sought Mr. Hill, who-was the president of the land company, and paid him $35 for the timber which they had cut on the lands of the company,, and Mr. Hill agreed to pay the amount over to the land company in fall of all claims by the company against petitioners.

For some reason he failed to do this, and the land company brought suit in 1897 for $499 for the timber cut.

Petitioners attended the Justice’s Court at the time set for hearing, when the case was continued. In the meantime petitioner saw Mr. Hill, and he assured them that no judgment would be taken, and that the matter should be settled under the original agreement.

Petitioners, supposing the matter settled, paid no further attention to it, but the company nevertheless took judgment by default for $499 and costs. This was September 17, 1897.

Petitioners did not know of this judgment until March, 1899, and hence did not appeal, but on hearing of it made a proposition to the company to compromise and adjust the matter. The negotiations extended over several months, when, as the petition says, the petitioners not having heard from the company, supposed the matter was dropped, or that the company was waiting till later to make a settlement.

On April 12, 1900, the company, by bill in .chancery, sought to enforce the judgment of the Justice of the Peace by subjecting certain equitable interests of John E. Greer in real estate in Shelby County.

Thereupon the petition was filed- and as heretofore stated was, on motion, . dismissed. The petitioner seeks to set aside ' the judgment of the Justice of the Peace and have a new trial. If we. grant, which is doubtful," that the petitioner states a reasonable excuse for delay up to the time when efforts to compromise failed, which must have been prior to September term, 1899, then were three or four terms of Court allowed to intervene before the petition was filed, and it was • not then filed until proceedings in chancery were begun to execute the judgment, on April 12, 1900, the petition being filed April 25, 1900.

We do not think that this is the exercise of proper diligence. If we grant that petitioners were in no fault up to the time the negotiations for compromise failed, still it wás incumbent on petitioners having a judgment standing against them to have pressed the compromise to a conclusion and not to have presumed that the judgment was abandoned.

We are of opinion the judgment of the Circuit Judge is correct, and it is affirmed with costs.