Hurt v. Childress

73 Tenn. 247 | Tenn. | 1880

Cooper, J.,

delivered the opinion of the court.

On the 9th of March, 1868, a judgment was rendered by a justice of the peace in favor of Anna Devault, the intestate of th.e defendant Wm. H. Chil-dress, against Wm. M. Powell and Pemberton Hunt, for $207.29, which judgment was stayed by Elijah Defew. On the 17th of November, 1877, the original bill was filed by Pemberton Hunt to have the judgment declared void as to him for the want of service of process. ¥m. H. Childress, as administrator of Anna Devault, filed a cross-hill to set aside a conveyance of land made by the defendant Elijah Defew to E. S. Defew, because made to hinder and delay creditors, and to subject the land to the satisfaction of the judgment. Upon the final hearing, the chancellor dismissed the original bill and granted the relief sought by the cross-bill. Complainant Hunt and defendant Elijah Defew appealed.

A party who seeks to set aside a judgment against him upon the ground that he was not served with process, must clearly make out his case, otherwise the judgments of the judicial tribunals would have no more sanctity than obligations in pais. The officer who. executed the original warrant simply cannot recollect that he served it upon Hunt, and therefore his testimony is of no avail. Hunt testifies that the warrant was not served upon him, and that he was not present when the judgment was rendered. Powell says he does not think Hunt was present at the trial, but can’t be positive. Thinks Defew stayed the judgment at his request, but don’t know whether Hunt was present. Defew swears that he stayed the judgment at the personal solicitation of both Hunt and Powell. And in this he is sustained by an independent witness who was present when the stay was entered, and who states that Hunt agreed, in order to induce Defew to become stayor, that the judgment should be rendered against him jointly with Powell. Not only has the original complainant failed to make out bis case, but the preponderance of proof is clearly against him, and the chancellor’s decree dismissing his bill is unquestionably correct. The weight of testimony is, moreover, that Defew became stayor at his instance as well as at the instance of Powell.

From the decree upon the cross-bill, declaring the deed from' Elijah Defew to E. S. Defew to be merely colorable, Elijah Defew has alone appealed. But it is clear that he has no interest in the matter, for he stands in his pleading and deposition upon the valid-' ity of the conveyance to E. S. Defew, and proves, in his deposition, that he has been fully paid the consideration called for in the deed. If E. S. Defew consents that his land shall be sold to satisfy the judgment in question, no other person has a right to complain. The chancellor’s decree is, besides, clearly correct upon the character of the instrument.

Affirm the decree with costs.