Sherman v. Kopelove

177 S.W.2d 19, 180 Tenn. 541, 16 Beeler 541, 1944 Tenn. LEXIS 320

• Court: Tennessee Supreme Court
• Decided: January 8, 1944
• Status: Published

Opinion

Mr. Justice Prewitt

delivered the opinion of the Court.

The complainant, Joe Sherman, and the defendant, Ralph Kopelove, were partners in an iron recovery firm known as Southern Materials Company, which operated at Lenoir City, Tennessee, and their business was to reclaim iron, from a dump of the Lenoir Car Works. The defendant, S. H. Robinson & Company,' Incorporated, purchased the partnership contract from Sherman and Kopelove for $4,500 represented by a note payable to Kopelove. The proof shows that this note was executed in Ohio in the presence of Max Robinson, one of the firm of S'. II. Robinson & Company, Incorporated, Joe Sherman, and Ralph Kopelove. The note remained in the possession of Kopelove for some months, and payments were made to him reducing the note to approximately $2,500.

The complainant Sherman filed his bill in the chancery court on November 7, 1942, seeking to attach the balance of the money owing by Max Robinson to the partnership. Thereupon the defendant Kopelove and his attorney made a trip to Knoxville to see Robinson about the settlement of the balance, and told Robinson that, he (Kopelove) would settle with Sherman. Robinson testified that Kopelove and 'Sherman were partners.

Not being able to see Sherman, Kopelove, Ms attorney, and Ms brother-in-law Schear returned to Ohio, and Schear, claiming that he had purchased the note from Kopelove, obtained a confessed judgment in Ohio. Then Schear through his attorney at Knoxville, "W. W. Piper, instituted a suit in the Circuit Court of Knox County on the foreign judgment and also on the note. S. H. Robinson & Company, Incorporated, then filed an answer and a bill of interpleader, and paid the amount of-the note, approximately $2,500, into the registry of the court.

Thereupon Sherman filed an amended and supplemental bill attacking the transfer of the note as a fraud and made Schear a party defendant. Publication was duly made for Kopelove and Schear, and written notice of the suit was served on Mr. Piper, Schear’s attorney of record in the suit in the circuit court. Neither Kopelove nor Schear made any defense in the instant case.

The deposition of the-complainant Sherman was taken, and the deposition of Max Robinson of the firm of S. H. Robinson & Company, Incorporated, was also taken. The latter testified that he understood that complainant and Kopelove were partners; that the reason the note was made payable to Kopelove was because the contract was in his name; that when Kopelove and Schear came to Knoxville after the original bill herein was filed they stated to him that they wanted to make a settlement with Sherman, who was out of the city that day; and that Schear made no claim that he was the owner of the note at that time.

The chancellor held that Sherman was a partner of Kopelove in the purchase of the iron; that Sherman had known Kopelove in Ohio for several years before he moved to Knoxville; that Kopelove, Schear and the Ohio attorney for Kopelove and Sebear were conspirators; and that Sebear bad no interest in tbe note.

Tbe defendants Kopelove and Sebear bave filed tbe record for writ ,of error and contend that tbeir constitutional rights bave been violated, and that tbe court bad no jurisdiction of tbe cause as no legal notice was given them of tbe proceedings.

Tbe defendants contend that Blanton v. Hall, 49 Tenn., 423, is authority for tbeir right to file tbe record for writ of error without entering tbeir appearance. "While counsel for complainant insist that under Taylor v. Sledge, 110 Tenn., 263, 75 S. W., 1074, tbe filing of tbe record for writ of error amounted to an appearance in tbe cause, tbe court pointing out in tbe latter case that tbe aggrieved defendant bad bis remedy by a suit in chancery to enjoin tbe proceedings.

Pretermitting an expression on this question, we are of opinion that Morrow v. Fossick, 71 Tenn., 129, is controlling. In that case it was held that where a creditor has attached a debt as due to bis nonresident debtor, tbe money was paid into court, and tbe debtor put in a plea that tbe fund was not bis property, but the property of a nonresident firm of which be was a member, whereupon tbe creditor filed an amended and supplemental bill against tbe members of tbe firm to ascertain tbe interest of tbe debtor in tbe fund, and tbe defendants moved to dismiss tbe bill upon tbe ground that tbe court bad no jurisdiction of the person of tbe defendants, that tbe motion was not well taken.

In tbe instant cause it appears that while no appearance was made by the defendants, tbe lower court acquired jurisdiction of the property by reason of its • location in tbe state and tbe service of tbe attachment and publication thereon. We have examined tbe plead ings, tlie process, tlie publication notices, and tlie attachments, and we are of opinion that the fund in question was in the custody of the court not only under the statutory provisions relating to attachments, but under the powers incident to the issuance of extraordinary process by the chancery court. The writ of error is entirely technical. There is no showing that there has been any fraud or any advantage taken of the defendants whatever, but on the other hand the record discloses that the defendants are guilty of fraud and a conspiracy, and do not come into this court with clean hands.

The record discloses that defendants came into this jurisdiction to enforce collection on the note or the foreign judgment; that they employed an attorney to reduce the note to judgment here or to enforce the foreign judgment; and that in addition to making publication for these two defendants, the attorney of record in the circuit court for these same two defendants was served with written notice of the present cause. The defendants cannot now be heard, to say that their constitutional rights, or failure to have notice and an op- . portunity to be heard, have been violated.

It results that we find no error in the decree of the chancellor, and it is affirmed.