Jones v. Moore

Tennessee Supreme Court

Jones v. Moore

61 S.W. 81, 106 Tenn. 188

CourtTennessee Supreme Court

DecidedDecember 22, 1900

StatusPublished

Cited by14 cases

This text of 61 S.W. 81 (Jones v. Moore) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Moore, 61 S.W. 81, 106 Tenn. 188 (Tenn. 1900).

Pincite

Opinion

Beard, J.

These cases were heard together. They are actions of replevin. In each ease the Court below entered a judgment of dismissal, and for the value of the property replevined, upon the ground that it was taken under the writ from the control and possession of a receiver, appointed by a Court of competent jurisdiction in a cause then pending, and that the action was instituted and the writ executed without the consent of that Court. This action is made the basis of error assigned by the respective plaintiffs in error.

These causes must be considered by us on the record entries alone. For while in each transcript we find what is entitled a bill of exceptions, yet m neither can the plaintiff in error avail himself of it as such. In each the trial Judge gave thirty days from the date of overruling the motion for new trial to prepare a bill of exceptions. In the case of Tucker v. Moore the record shows that more than thirty days elapsed before the bill of exceptions was filed. This was too late. Bettis v. State, 103 Tenn., 339.

In the case of Brunette Jones v. Moore the record fails to show when the paper purporting to be a bill of exceptions was field. ' Under Chapter 215 of the Acts of 1899 filing within thirty days is essential, and this is defined to be a delivery of the paper in question “into the actual custody of the' Clerk, to be kept by him among the files, subject to the inspection of the [190]*190parties.” Ency. Pl. & Pr., 923. And the record must affirmatively show that this was done. Muse v. State, ante, p. —, opinion present term. The mere bodily presence of the paper in the transcript, without more, is not sufficient. The result is that we’ ‘are bound to assume that the trial Judge was warranted in finding that the property involved was wrongfully taken out of the custody of a duly appointed receiver without the permission of the Court appointing him. Such a proceeding cannot be tolerated. It is well settled that property in the hands of a receiver is in custodia legis, and cannot be interfered with by process of another Court. Morrill v. Noyes, Am. L. R., Vol. 3, p. 21, cited and approved, in Conley v. Deers, etc., 11 Lea, 214; 20 A. & E. E. of Law, 1st ed., pp. 141 et seq., and notes.

Judgment in each case is affirmed.

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Beard, J.

These cases were heard together. They are actions of replevin. In each ease the Court below entered a judgment of dismissal, and for the value of the property replevined, upon the ground that it was taken under the writ from the control and possession of a receiver, appointed by a Court of competent jurisdiction in a cause then pending, and that the action was instituted and the writ executed without the consent of that Court. This action is made the basis of error assigned by the respective plaintiffs in error.

These causes must be considered by us on the record entries alone. For while in each transcript we find what is entitled a bill of exceptions, yet m neither can the plaintiff in error avail himself of it as such. In each the trial Judge gave thirty days from the date of overruling the motion for new trial to prepare a bill of exceptions. In the case of Tucker v. Moore the record shows that more than thirty days elapsed before the bill of exceptions was filed. This was too late. Bettis v. State, 103 Tenn., 339.

In the case of Brunette Jones v. Moore the record fails to show when the paper purporting to be a bill of exceptions was field. ' Under Chapter 215 of the Acts of 1899 filing within thirty days is essential, and this is defined to be a delivery of the paper in question “into the actual custody of the' Clerk, to be kept by him among the files, subject to the inspection of the [190]*190parties.” Ency. Pl. & Pr., 923. And the record must affirmatively show that this was done. Muse v. State, ante, p. —, opinion present term. The mere bodily presence of the paper in the transcript, without more, is not sufficient. The result is that we’ ‘are bound to assume that the trial Judge was warranted in finding that the property involved was wrongfully taken out of the custody of a duly appointed receiver without the permission of the Court appointing him. Such a proceeding cannot be tolerated. It is well settled that property in the hands of a receiver is in custodia legis, and cannot be interfered with by process of another Court. Morrill v. Noyes, Am. L. R., Vol. 3, p. 21, cited and approved, in Conley v. Deers, etc., 11 Lea, 214; 20 A. & E. E. of Law, 1st ed., pp. 141 et seq., and notes.

Judgment in each case is affirmed.

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61 S.W. 81, 106 Tenn. 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-moore-tenn-1900.

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