Spradlin v. Bratton

74 Tenn. 685

• Court: Tennessee Supreme Court
• Decided: April 15, 1881
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court. '

On the 2d of January, 1875, Spradlin sued Brat-ton before a justice of the peace on a debt due for rent of land, and at the same time sued out an attachment to attach the crop growing on the land, under the provision of the Code giving a Hen on the crop for the rent: Code, sec. 3541. The defendant .appeared and filed what he calls a’ plea in abatement of the attachment, to the effect “that the debt sued on is not due in manner and form as the plaintiff hath in his affidavit alleged.” The justice gave judgment in favor of the plaintiff for $94.45 and costs, and ordered the property attached, consisting of forty barrels of corn and twelve hundred bundles of fodder, to be sold in satisfaction thereof. AVithin the two days thereafter prescribed by law the defendant stayed the execution of the judgment by giving security under the Code, sec. 3059. The plaintiff then applied to the justice for a writ of venditioni exponas to sell the property attached, which the justice refused to issue. Thereupon, the plaintiff filed his petition in the circuit court for a mandamus to compel the justice to issue the. writ, and obtained a fiat from the judge for an alternative mandamus. The justice demurred to the writ, but the demurrer was overruled. The defendant Bratton then intervened as a party, and he and the justice filed answers to the mandamus. Ou the hearing, the circuit judge was of opinion that the plaintiff was entitled to a peremptory mandamus, and adjudged accordingly. The defendant Bratton appealed.

The Code, sec. 3059, is: “On all judgments before justices of the peace, the defendant is entitled to a stay of execution for eight months, upon entering good and sufficient security on the justice’s docket for debt, interest and costs, within two entire days, Sundays excepted, after the rendition of the judgment.” The language is general, and would include all judgments, and wo are not aware that the courts have even made any exception unless there was a statute taking the particular case out of the rule. A special exception was made in the case of a judgment, recovered by motion, in favor of a stay or or surety against the principal debtor, or a co surety or stayor, after he has been compelled to pay the debt: Code, 4171.

The argument is, that the stay law does not apply to judgments upon suits for rent because the creditor is, by the express provisions of the Code, sec. 3539, given a lien on the growing crop for the security of the debt, the • benefit of which would be lost by the stay of execution. It might be an answer to say, that if the creditor elect to sue before a justice, the security provided by law for the stay is in lieu of the speedier remedies when the judgment is not stayed. But the true answer is, that the benefit of the lien is not lost by the stay. The lien is merely suspended during the necessary law’s delay, and can be enforced as soon as the period of stay has expired. If the creditor resort, as in this instance, to an original attachment, the property attached will remain in custodia legis until a venditioni exponas can issue. The creditor is precisely in the situation of the creditor Avho has obtained an attachment of his debtor’s property, under the general attachment law, whose judg-‘ ment has been stayed, without security, for “not exceeding twelve nor less than six months,” by the court or justice in compliance with the provisions of the Code, secs. 3527, 3528.

Nor is there anything in the suggestion that the property attached — the crop growing or made on the land — may perish during the stay, for the Code expressly provides for the sale of perishable property, seized by attachment, by order of the court or justice, unless replevied, by the defendant, or by the officer himself, who has’ attached it, if it become necessary before he makes his return: Code, secs. 3504-5. And a receiver may be appointed in all other cases to take posses-ion of the property, collect, manage and control the same, and pay over the proceeds according to the nature of the property and exigency of the case:, Code, sec. 3503.

The judgment creditor has simply mistaken his remedy. He should have applied to the justice for a sale of the corn and fodder attached, as being of a perishable nature, and for a receiver .to take charge of the fund until the stay of the judgment expired. He was clearly not entitled to a venditioni exponas on the judgment, for the issuance of that writ within the eight months of the stay would have been a violation of the statute.

The judgment of the circuit judge will be reversed, the demurrer to the mandamus sustained, and the proceedings dismissed with costs.