Bank v. Evans

95 Tenn. 702 | Tenn. | 1896

McAlistee, J.

This is an attachment bill, filed in the Chancery Court of Sumner County, for the purpose of- subjecting a storehouse and stock of groceries to the satisfaction of complainant’s debt. The ground laid for the attachment was that the defendant was concealing himself so that the ordinary process of law could not be served upon him. A plea in abatement was filed by Evans traversing the ground of attachment. The Chancellor decreed that the plea was not supported by the evidence, and sustained the attachment. Defendant appealed, and the decree of the Chancellor was affirmed by the Court of Chancery Appeals. ' The case is now before this Court upon the appeal of the defendant. The only question presented for determination is whether, upon the facts, the defendant was concealing himself so that the ordinary process of law could not be served upon him. The uniform construction of this statute (Subsec. 4, § 4192, M. & Y. Code) by this Court is that it contemplates a clandestine and intentional concealment, so as to avoid legal process. Bennett v. Avant, 2 Sneed, 151. The Court of Chancery. Appeals so construed the statute. That Court, through Judge Barton, found the facts to be “that the defendant, Evans, was doing business in the town of Gallatin as a retail grocery merchant; that he had become embarrassed, and was being pressed to some extent by his creditors; that, on April 17, 1893, he left Gallatin, leaving the store in charge of two clerks, and telling one of his clerks that he was going to Nashville, and would be back that evening, but he remained away for some two weeks. Failing to return as promised, his wife and his nephews, becoming uneasy, came to Nashville, and, with the assistance of a detective, made an unsuccessful search for him, and, hearing no tidings, returned to Gallatin. Whereupon, on April 21, four days after his departure, his creditors, believing- him to have absconded, sued out attachments against his property. The defendant’s explanation of the matter is, that he came to Nashville on business, for the purpose of seeing certain creditors and arranging matters with them. Upon reaching- Nashville, he. unfortunately became intoxicated to such an extent that he was utterly oblivious of all moral and social obligations, and remained in that condition for probably two weeks. It is insisted in his behalf that this temporary withdrawal and absence from his usual walks of life, without the knowledge or consent of his family or creditors, was not with any purpose or intent of concealing himself or of avoiding legal process. Defendant left on Monday evening. On the morning before he left he told the clerk in charge that he was going to town and go down in the country. In the afternoon he seems to have changed his mind, and told his clerk he was going to Nashville, and would be back that night at eight or nine o’clock. He took with him what money he had on hand — some $235. He .also procured an attorney to accompany him to Nashville, for the purpose, as he says, of drawing up an assignment in case he did not succeed in making a satisfactory arrangement with his Nashville creditors. • He had previously given some checks on the complainant’s hank which he had dated ahead, and which he did not have the funds in hank to meet. He had overdrawn his account in bank some $726.43, and had promised, some days before, to make his account good by the Saturday before or certainly on Monday, the day he left. After reach-iirg Nashville, he disappeared so effectually, for a week or ten days, that none of ‘ his creditors were able to hear of his whereabouts.” The Court of Chancery Appeals set out other facts and circumstances touching the disappearance of the defendant, but we have stated the main features of their report. The inference drawn by the Court of Chancery Appeals from these findings of fact is, that the defendant had intentionally concealed himself to avoid the ordinary process of law, and they discard the explanation of defendant that he was intoxicated to such an extent that he was incapable of appreciating his situation.

The only question we are asked to decide is, whether the Court of Chancery Appeals was warranted, upon the facts found by them, in deducing ‘an inference of intentional concealment on the part of defendant, Evans. This is obviously such a question as we are precluded from reviewing, in view of the statutory jurisdiction conferred upon that Court- as the final arbitrators of facts in equity-causes assigned them by this Court. The jurisdiction of that Court is not limited to a determination of the probative effect of direct testimony, but it is within their province, like that of a jury, to make all legitimate and reasonable inferences in respect of intent from facts and circumstances put in evidence. As stated by Mr. Elliott in his General Practice, Vol. I., Sec. 435: “ Intent, purpose, or design is a question of fact „for the jury. Thus, the question of the intent with which a person accused of burglary entered the house is for the jury; so is the intent of one charged with conspiracy, obtaining money under false pretenses, and the like. The rule is the same in civil actions. The question of domicile, of the revocation of a will, and of dedication are usually questions of fact, or of mixed questions of law and fact, to be determined by the jury; and so are questions of intent to abandon a homestead, to evict a tenant, and the like, ’ ’ etc.

It is the opinion of this Court that the finding of the Court of Chancery Appeals in respect of the intention of the defendant, Evans, in concealing himself, is not a conclusion of law, but an inference of fact, which that Court had the exclusive right to draw, upon the facts found in the record, and which is binding upon this Court.

The decree is therefore affirmed.