63 Tenn. 550 | Tenn. | 1874
delivered the opinion of the Court.
The decree was pronounced 2nd May, 1868, and
There has been no motion to dismiss, but it is now insisted this Court has no jurisdiction, and the writ must be dismissed, as there is no fiat or order granting it.
We judicially know the Court was in session on the day the transcript was filed. At the end of the transcript is endorsed:
“I am security on this writ of error case in Supreme Court.” “T. W. Tueley.”
“ I hereby acknowledge service of the foregoing, February 25, 1870.” “ G. M. Fogg, Jr., Sol.”
The language employed' by the one solicitor, when he became security for costs “ on this writ of error case in Supreme Court,” was directly under the eye of the solicitor for the adverse party. When he ac-knowledgd “ service of the foregoing,” this language, in terms, recognizes the writ of error, and now, at the end of almost five years, we must conclusively presume that steps to bring the case to this Court were regularly and properly taken.
The case is before us at the instance of W. H. Turley, who, it is claimed, is a party by garnishment. Several questions are urged for his discharge.
The first ,we will notice is the incompetency of his Honor, Chancellor Harrison.
The decree of the May Term, 1869, recites; “ This cause came on this day to be heard before the Honorable David Campbell, sitting as Chancellor,
The decree pronouncing judgment nisi against Tur-ley, as garnishee, was pronounced by Chancellor Harrison. There is nothing in the record showing a removal or waiver of his incompetency, and no such change of interest in parties as we may infer it.
The rule of law presuming that a fact once shown to exist continues to exist until the contrary is shown, applies.
The Chancellor was incompetent, and the decree fails, and with it 'all subsequent proceedings based upon it. If this was not so, the judgment nisi was rendered against W. H. Turley, a partner of Blanfil & Co. The notice was directed, by that judgment, to be issued to Blanfil & Co., who have never been before the Court, and althongh Turley may have been a partner of Blanfil & Co., notice to the firm would not effect his individual rights or interests, disconnected from those of the firm.
It would be carrying the rule to an extravagant and very unreasonable length, to hold that notice to one of a firm would effect his associate in business in his private and individual affairs, utterly foreign to the firm business, and in which the party notified had not the slightest interest or concern.
Again. The notice or sci. fa. was ordered to issue, returnable to first Monday in December, but the Clerk and Master issued, to be returnable first Monday in February. The writ must pursue the order directing
It is insisted that it was an alias. True, there are written above it in. the record the words, “Alias Scire Facias, issued January 11, 1868,” but in no way connected with the writ, and there is nothing on the face of the writ showing it to be an alias.
The return of the Sheriff is: “Executed on Jo Blanfil & Co.” Turley is not mentioned, nor does it anywhere legitimately appear that this is the firm of which Turley is assumed to be “ a partner.” There are other errors in the record, but we think we have recited enough.
Reverse the decree, and discharge the garnishment.
