Webb v. Jones

81 Tenn. 200 | Tenn. | 1884

FreeMAN, J.,

delivered the opinion of the court.

This case was placed on the easy docket for an affirmance some weeks since. On consideration the ■court concluded it was a proper case for reversal of the chancellor, that the demurrer should have been sustained, and the bill dismissed, and so adjudged.

An earnest petition for rehearing is now presented. We see nothing in it, however, but what was pre-presented in brief of complainant’s counsel before, nor •any thing to change our opinion.

It is simply a bill by a creditor proposing, by proceedings in a court of chancery, to reach and compel a debtor to appropriate $2000 of money he has obtained in a mortgage, and which is in his possession, to the payment of his debt. It is filed, as' •argued on the assumption, that the case of Creswell v. Smith, 8 Lea, 688, authorized the relief sought. But in the concluding part of the opinion, page 702, it will be seen that Judge McFarland expressly says: “We are not to be understood as intimating that a bill might or might not be maintained to compel a •defendant to discover whether he has money to pay «his debt.” That is this case, and the question was rpretermitted, and not then decided.

At last term at Knoxville, in a case not yet re-reported, we held such a bill could not be maintained. Having settled the question, we thought it useless to allow this litigation to go on at expense and trouble, be decided ultimately on proof, and then come back to this court, to have the bill then dismissed on the •demurrer, and so determined to end the litigation at this point. We think our conclusion was correct, and •dismiss the petition for rehearing, so far as the question above stated is concerned. But on looking to the prayer of the bill, we find complainant has prayed for a decree in this case for the amount of his judgment before the magistrate. He is entitled to this. The decree below will therefore be reversed, a decree rendered, dismissing the bill as to the relief sought against the $2000 sought to be impounded, and remanding the case for answer or further proceedings as to the right to have decree for the judgment before the magistrate. Costs of this court be paid by complain-, ant, the cost of the court below to be adjudged by chancellor.