Macheca v. Panesi

72 Tenn. 544

• Court: Tennessee Supreme Court
• Decided: April 15, 1880
• Status: Published

Opinion

TüRNEY, J.,

delivered the opinion of the Court.

The goods of Panesi were attached. On the hearing the Chancellor dismissed the attachment bill as to Panesi. There was no appeal from the decree.

On motion of Panesi, an order of reference was made to ascertain the damages to him because of the attachment.

On the coming in of the report of the Clerk and Master, exceptions were filed by complainants in the original bill, which, being overruled, they have appealed to this Court.

The decree dismissing the bill was final.

Panesi, by his motion, became the actor or piaintifl. The motion is an independent suit, and is a substitute for an action at law upon the attachment bond. The proceedings under it are distinct from the original cause, though growing out of it. The party complaining has his election to proceed, either by motion before the Court -that passed upon the original cause, or by suit at law upon the bond.

An appeal from the judgment or decree in either case will not bring up to this Court, for its revision, the judgment or decree in the original cause.

It is competent for the Court' in which the bond was executed to ascertain and .assess the damages.

The exceptions were properly overruled, and the decree is affirmed.