NOTES TO DECISIONS

1. Declaration Claiming Penalty.

It is not wrong in the declaration to claim the penalty of the bond sued on, for this is agreeable to this statute, which directs judgment to be entered for the penalty to be discharged by the damages assessed. Calhoun v. Lillard, 5 Tenn. 56, 1817 Tenn. LEXIS 47 (1817).

2. Indemnity Bond with Collateral Conditions — Interest on Penalty.

Interest cannot properly be allowed on the penalty of a fidelity bond, prior to the judgment in the lower court, where the bond expresses only a maximum amount of liability, dependent upon the breach of duty by the employee whose conduct was insured, and the exact amount of liability is measured by the extent of the breach, for such bond is one with collateral conditions. Interest may be allowed only after judgment on the bond. Louisville & N. R. Co. v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 148 S.W. 671, 1911 Tenn. LEXIS 49 (1911). See also Peoples Bank & Trust Co. v. United States Fidelity & Guaranty Co., 156 Tenn. 517, 3 S.W.2d 163, 1927 Tenn. LEXIS 147 (1928).

NOTES TO DECISIONS

1. Judgments Subject to Setoff — Costs.

Judgments of the same court, including the supreme court, may, upon motion, be setoff against each other, whether rendered at the same term or at different terms, but the costs belonging to other parties cannot be setoff. Hadley's Adm'rs v. Hickman, 9 Tenn. 501, 1831 Tenn. LEXIS 34 (1831); Rutherford v. Crabb, 13 Tenn. 111, 13 Tenn. 112, 1833 Tenn. LEXIS 118 (1833); Sneed v. Sneed, 82 Tenn. 13, 1884 Tenn. LEXIS 97 (1884); Roberts v. Mitchell, 94 Tenn. 277, 29 S.W. 5, 1894 Tenn. LEXIS 44, 29 L.R.A. 705 (1895).

2. Attached Judgment.

Where a judgment is attached or impounded for debt, and the lien is fixed on it, the equities then existing may be asserted by the judgment debtor, but not the equities thereafter created or existing. A judgment in tort, thereafter obtained by the judgment debtor against the judgment creditor, cannot be setoff against the judgment so attached. Harris v. Harris, 3 Shan. 57 (1878).

3. Mutual Obligations.

Insurance agencies' obligations to insurer to collect and remit premiums, and insurer's obligation to agencies for share of profit, were mutual, and thus could be offset in insolvent insurer's action against agencies for unpaid premiums. McReynolds v. Cherokee Ins. Co., 815 S.W.2d 201, 1990 Tenn. App. LEXIS 673 (Tenn. Ct. App. 1990).

4. Assignee — Right to Setoff Judgment.

The defendant in an action at law on a money demand may rely upon a judgment against the plaintiff as a setoff, whether the judgment was rendered in favor of defendant, or assigned to him before the commencement of the suit. Wilson v. Reaves, 36 Tenn. 173, 1856 Tenn. LEXIS 74 (1856).

5. Claims Which Could Have Been Setoff at Law — Effect as to Relief in Chancery.

Where the defendant had a plain and unembarrassed right of setoff against an action at law, and failed to present it, he cannot, after the judgment has been rendered against him, maintain a bill in chancery to have his claims setoff against such judgment. Crafton v. Boon, 52 Tenn. 93, 1871 Tenn. LEXIS 239 (1871).

6. Attorney's Lien.

The right to setoff independent judgments rendered in different suits, growing out of different causes of action, is subordinate to the attorney's lien for services rendered in obtaining the particular judgment. Roberts v. Mitchell, 94 Tenn. 277, 29 S.W. 5, 1894 Tenn. LEXIS 44, 29 L.R.A. 705 (1895).

An excess judgment for defendant, recovered by way of recoupment on one of two contracts which complainant sued on, may be setoff against complainant's judgment on the other, but such right is subordinate to lien for fees of complainant's solicitor on the judgment against which there was no recoupment. Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, — S.W.2d —, 1929 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1929).

The attorney's lien attaches as of date of filing bill of complaint in chancery. Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, — S.W.2d —, 1929 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1929).

7. Exemption Laws.

The right to setoff judgments against each other cannot be so exercised as to circumvent the exemption laws. Duff v. Wells, 54 Tenn. 17, 1871 Tenn. LEXIS 410 (1871); Collier v. Murphy, 90 Tenn. 300, 16 S.W. 465, 1891 Tenn. LEXIS 22, 25 Am. St. Rep. 698 (1891); Crawford v. Carroll, 93 Tenn. 661, 27 S.W. 1010, 1894 Tenn. LEXIS 12, 42 Am. St. Rep. 943, 26 L.R.A. 415 (1894); Wright v. Brooks, 101 Tenn. 601, 49 S.W. 828, 1898 Tenn. LEXIS 108 (1899).

NOTES TO DECISIONS

1. Joint and Several Judgments.

A suit may be joint upon the counts charging a confederacy, but several upon the other counts as to each defendant, and a several judgment may be rendered upon such counts. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

2. Judgment Against Some Defendants and Dismissal as to Others.

On a verdict for several damages against each defendant sued jointly in an action of tort, plaintiff may enter a judgment against one defendant for the amount returned against him, and dismiss the suit as to the other defendants. Davis v. Chance, 10 Tenn. 94, 1825 Tenn. LEXIS 2 (1825); Nashville R.R. & Light Co. v. Trawick, 118 Tenn. 273, 99 S.W. 695, 1906 Tenn. LEXIS 95, 10 L.R.A. (n.s.) 191 (1906).

The fact that some of the defendants may successfully defend the suit by plea of the bar of the statutes of limitation will be no protection to the other defendants, against whom the suit was commenced in time, where the cause of action is joint and several. Burgie v. Parks, 79 Tenn. 84, 1883 Tenn. LEXIS 18 (1883).

3. Judgment Against “Defendants.”

Judgment against the “defendants,” without naming them, is a judgment against all defendants to the suit, and who are such defendants is a matter to be ascertained by reference to the process, pleadings, and proceedings in the suit. Wilson & Wheeler v. Nance & Collins, 30 Tenn. 189, 1850 Tenn. LEXIS 88 (1850); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886).

4. Joint Tort-Feasors.

A plaintiff, who recovers in action against joint tort-feasors, is entitled to have his full damages adjudged in one sum against all of the defendants, although they may have been culpable in different degrees. Nashville, C. & St. L. R.R. v. Jones, 100 Tenn. 512, 45 S.W. 681, 1897 Tenn. LEXIS 141 (1897); Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93, 1903 Tenn. LEXIS 37 (1903), overruled, questioned, Velsicol Chemical Corp. v. Rowe, 543 S.W.2d 337, 1976 Tenn. LEXIS 478 (Tenn. 1976); Nashville R.R. & Light Co. v. Trawick, 118 Tenn. 273, 99 S.W. 695, 1906 Tenn. LEXIS 95, 10 L.R.A. (n.s.) 191 (1906); Price v. Clapp, 119 Tenn. 425, 105 S.W. 864, 1907 Tenn. LEXIS 15, 123 Am. St. Rep. 730 (1907); Moore v. Chattanooga Elec. Ry., 119 Tenn. 710, 109 S.W. 497, 1907 Tenn. LEXIS 32, 16 L.R.A. (n.s.) 978 (1907).

In an action for the death of plaintiff's wife, where the jury first reported that they found in favor of plaintiff and assessed $5,000 damages against the railroad company, and $5,000 damages against the estate of the driver of the automobile, it was not error for the trial judge to instruct the jury that a joint verdict must be rendered, and, when the foreman, in response to questions, stated that the verdict was for plaintiff for $10,000, to enter judgment, on such verdict, especially where neither of defendants objected to such manner of receiving the verdict or request the jury to be polled. Tennessee C. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225, 1920 Tenn. LEXIS 22 (1920).

5. Joint Trespassers.

Action of trespass may be maintained against each of the several joint trespassers, and judgment against one, without satisfaction, will not bar an action against the others. Knott v. Cunningham, 34 Tenn. 204, 1854 Tenn. LEXIS 34 (1854); Brison & Co. v. Dougherty, 62 Tenn. 93, 1873 Tenn. LEXIS 148 (1873); Nashville, C. & St. L. R.R. v. Jones, 100 Tenn. 512, 45 S.W. 681, 1897 Tenn. LEXIS 141 (1897); Nashville R.R. & Light Co. v. Trawick, 118 Tenn. 273, 99 S.W. 695, 1906 Tenn. LEXIS 95, 10 L.R.A. (n.s.) 191 (1906) (proper judgment on verdict improperly assessing several damages in tort, and proper method of correcting improper judgment).

6. Vindictive Damages Against One Defendant.

In an action for libel involving a charge of moral turpitude, the jury may, in its discretion, award punitive damages, and such damages may be assessed against one defendant and not against the other, if the circumstances warrant such a judgment. Price v. Clapp, 119 Tenn. 425, 105 S.W. 864, 1907 Tenn. LEXIS 15, 123 Am. St. Rep. 730 (1907).

7. One Defendant Recovering Against Another.

A defendant in chancery, when jointly interested with the complainant in the subject matter in litigation, may have relief against a codefendant, where the complainant is so entitled, and may recover his proportionate share. Henshaw, Ward & Co. v. Wells, 28 Tenn. 568, 1848 Tenn. LEXIS 124 (1848); Allen v. Baugus, 31 Tenn. 404, 1852 Tenn. LEXIS 128 (Tenn. Apr. 1852); Gentry v. Gentry, 33 Tenn. 87, 1853 Tenn. LEXIS 11, 60 Am. Dec. 137 (1853); Ingram v. Smith, 38 Tenn. 411, 1858 Tenn. LEXIS 203 (Tenn. Dec. 1858); Elrod v. Lancaster, 39 Tenn. 571, 1859 Tenn. LEXIS 280 (1859); McKee v. Dail, 1 Tenn. Ch. App. 689 (1901); Eakin v. Riddle, 127 Tenn. 426, 155 S.W. 166, 1912 Tenn. LEXIS 40 (1912).

8. Joint Judgment Void as to Part of Defendants.

The common law rule that a judgment is an entire thing, and, therefor, if void as to one party, cannot be allowed to stand as to any of the other parties, is a purely technical one, and was abrogated by the provisions of § 27-1-116 (repealed); and a joint judgment valid as to one defendant or some of the defendants, but void as to another or other defendants, will not be reversed upon the application of the one or those as to whom it is correct. Bently v. Hurxthal, 40 Tenn. 378, 1859 Tenn. LEXIS 105 (1859); Smith v. Foster, 43 Tenn. 139, 1866 Tenn. LEXIS 29 (1866); Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866); Webbs v. State, 44 Tenn. 199, 1867 Tenn. LEXIS 32 (1867); Ouly v. Dickinson & Fegan, 45 Tenn. 486, 1868 Tenn. LEXIS 36 (1868); Williams v. Neil, 51 Tenn. 279, 1871 Tenn. LEXIS 163 (1871); Smith v. Cunningham, 2 Cooper's Tenn. Ch. 565 (1875); Nashville St. Ry. v. Gore, 106 Tenn. 390, 61 S.W. 777, 1900 Tenn. LEXIS 173 (1900); Brown & Sons Lumber Co. v. Sessler, 128 Tenn. 665, 163 S.W. 812, 1915C Am. Ann. Cas. 103, 1913 Tenn. LEXIS 79 (1913).

In replevin actions § 27-1-116 (repealed) has no application and if judgment is improper against one defendant it will be reversed as to both. Ouly v. Dickinson & Fegan, 45 Tenn. 486, 1868 Tenn. LEXIS 36 (1868).

9. Effect of Court Rules.

This section was not changed or modified by Tenn. R. Civ. P. 20.01. Henry County Board of Education v. Burton, 538 S.W.2d 394, 1976 Tenn. LEXIS 490 (Tenn. 1976).

NOTES TO DECISIONS

1. In General.

Such and so many judgments — joint, separate, and cross — may be rendered as may be necessary to the rights of the parties at law as well as in equity, and such judgments may be molded, so as to suit the facts. Ward v. Thomas, 42 Tenn. 565, 1865 Tenn. LEXIS 103 (1865); State v. Covington, 72 Tenn. 51, 1879 Tenn. LEXIS 5 (1879); Mason v. Smith, 79 Tenn. 67, 1883 Tenn. LEXIS 14 (1883); Diamond Service Station v. Broadway Motor Co., 158 Tenn. 258, 12 S.W.2d 705, 1928 Tenn. LEXIS 148 (1929).

2. Equitable Setoff — Jurisdiction to Allow.

The circuit court cannot allow a claim in the nature of an equitable setoff, under this statute, because equitable setoff is a matter of equity jurisdiction. Parker v. Britt, 51 Tenn. 243, 1871 Tenn. LEXIS 154 (1871).

3. Judgment Against Husband and Wife for Wife's Tort — Cases Arising Prior to Emancipation Statute.

In an action against the husband and wife for a libel committed by the wife alone, they are both jointly liable for the compensatory damages for which the wife is liable, and she alone is liable for the additional exemplary or punitive damages properly allowable, and, under §§ 25-1-104, 25-1-105, verdicts and judgments should be framed accordingly. Price v. Clapp, 119 Tenn. 425, 105 S.W. 864, 1907 Tenn. LEXIS 15, 123 Am. St. Rep. 730 (1907).

Husband and wife were liable for injuries caused by animals kept by wife during the husband's absence and a judgment against both was proper. Missio v. Williams, 129 Tenn. 504, 167 S.W. 473, 1914 Tenn. LEXIS 140, L.R.A. (n.s.) 1915A500 (1914).

4. Replevin Actions.

In replevin suit by finance company against deputy sheriff and garage operator to recover possession of car owned by debtor the trial court properly awarded possession of car to garage owner who claimed a lien where car was in possession of garage owner though garage owner had obtained possession by means of an attachment. Securities Inv. Co. v. Armstrong, 168 Tenn. 462, 79 S.W.2d 570, 1934 Tenn. LEXIS 78 (1935).

5. Unlawful Detainer.

Where, in an action of unlawful detainer for default in payment of rents, the defendant retained possession pending a removal of the case to the circuit court, by giving the bond, a surrender of the possession pending the litigation did not relieve the defendant lessee and surety from liability on the bond, and, while it was unnecessary for the court to render judgment awarding the plaintiff possession, the judgment should recite the facts, including the surrender pending the litigation, and declaring the beginning of the action, and, as a consequence, his right to a recovery on the bond for rents and costs. Matthews v. Crofford, 129 Tenn. 541, 167 S.W. 695, 1914 Tenn. LEXIS 144 (1914).

6. Attorney's Lien.

An excess judgment for defendant, recovered by way of recoupment on one of two contracts which complainant sued on, may be setoff against complainant's judgment on the other, but such right is subordinate to lien for fees of complainant's solicitor on the judgment against which there was no recoupment. Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, — S.W.2d —, 1929 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1929).

NOTES TO DECISIONS

1. Independent Right.

Where removal of governmental immunity rests upon § 29-20-203, removing immunity for injury from unsafe streets and highways, the right to recover for loss of consortium is a right independent of the spouse's right to recover for the injuries themselves, and is not limited by the liability limitations of § 29-20-403. Swafford v. Chattanooga, 743 S.W.2d 174, 1987 Tenn. App. LEXIS 2867 (Tenn. Ct. App. 1987).

Where the husband was injured during a motor vehicle accident, there was material evidence to support the jury's award of loss of consortium damages to the wife in excess of the damages awarded to the husband for his personal injuries. Clark v. Shoaf, 209 S.W.3d 59, 2006 Tenn. App. LEXIS 220 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —,2006 Tenn. LEXIS 882 (Tenn. 2006) .

2. Prior Right.

Wife was not entitled to recover for loss of consortium on basis of automobile accident occurring prior to the effective date of this section. Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652, 1970 Tenn. LEXIS 340 (1970).

3. Worker's Compensation.

Provisions of § 50-6-108 to, the effect that right to workers' compensation is exclusive, precluded wife who was receiving workers' compensation benefits from suing husband's employer for loss of consortium based on compensable injuries of husband. Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135, 1971 Tenn. LEXIS 347 (1971).

An employer's right to subrogation does not extend to amounts recovered by the worker's spouse for loss of consortium against a third-party tortfeasor; amounts collected by a spouse for a cause of action vested solely in that spouse are beyond the reach of the statutory subrogation lien provided for in T.C.A. § 50-6-112(c). Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

In workers' compensation cases, when the allocation of damages between an injured worker and the injured worker's spouse is determined by settlement, a party may request approval of the settlement from the court having jurisdiction over the third party claim. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

4. Requirements for Recovery.

It was not necessary for the wife to testify or participate in the trial, where the husband's proof as to injuries and disabilities clearly established her loss of consortium. Swiney v. Malone Freight Lines, 545 S.W.2d 112, 1976 Tenn. App. LEXIS 257 (Tenn. Ct. App. 1976).

Plaintiffs could not proceed with a loss of consortium claim as a result of an accident pursuant to T.C.A. § 25-1-106 because they were not legally married in that they had no valid license as required under T.C.A. §§ 36-3-103 and 36-3-109, a common law marriage was not recognized in Tennessee, and marriage by estoppel was not established. Becker v. Judd, 646 F. Supp. 2d 923, 2009 U.S. Dist. LEXIS 73684 (M.D. Tenn. Aug. 19, 2009).

5. Allowance of Recovery.

Where removal of governmental immunity rests upon § 29-20-203, removing immunity for injury from unsafe streets and highways, the injured person's spouse may, where the damages are proved, recover for the loss of consortium. Swafford v. Chattanooga, 743 S.W.2d 174, 1987 Tenn. App. LEXIS 2867 (Tenn. Ct. App. 1987).

Where the wife was injured in an automobile accident, the husband was not entitled to damages for loss of consortium; the injured party was able to assist her husband after the accident, and the jury was free to believe that changes in plaintiffs' sex life, if any, were not a result of the accident. McPeek v. Lockhart, 174 S.W.3d 751, 2005 Tenn. App. LEXIS 199 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 817 (Tenn. 2005).

6. Action Barred.

Trial court properly dismissed a wife's claim for loss of consortium as barred by the statute of limitations because the wife she was not a party to the patient's original health care liability complaint that was dismissed without prejudice; thus, the wife was unable to take advantage of the saving statute that was available to the patient, her husband. Brookins v. Tabor, — S.W.3d —, 2018 Tenn. App. LEXIS 139 (Tenn. Ct. App. Mar. 15, 2018), substituted opinion, — S.W.3d —, 2018 Tenn. App. LEXIS 250 (Tenn. Ct. App. May 8, 2018).

Although a loss of consortium claim by a patient's spouse was a cause of action separate from that of the patient, the claim was still derivative of the patient's health care liability claim and was barred by the statute of limitations applicable to all health care liability claims. Furthermore, because the spouse was not a party to the patient's prior complaint that was dismissed without prejudice, the spouse was unable to take advantage of the saving statute that was available to the patient. Brookins v. Tabor, — S.W.3d —, 2018 Tenn. App. LEXIS 250 (Tenn. Ct. App. May 8, 2018).

NOTES TO DECISIONS

1. Effect and Operation of Section.

This statute cannot be given retrospective operation to impair obligation of contract and does not apply to a power to confess judgment incorporated in a note executed prior to the enactment of the Code, and such power of attorney is irrevocable. Hermitage Loan Co. v. Daykin, 165 Tenn. 503, 56 S.W.2d 164, 1932 Tenn. LEXIS 76 (1933).

Decisions Under Prior Law

1. Extent of Power to Confess.

A written authority empowering a person to confess judgment at one term of a particular court will not authorize its confession at another term thereof, because such authority is special must be strictly pursued, or it will not be binding. Rankin v. T. & W. Eakin & Co., 40 Tenn. 229, 1859 Tenn. LEXIS 60 (1859).

2. Proceedings Not Amounting to Judgment by Confession.

A justice's judgment rendered upon a warrant, the service of which is acknowledged by the defendant, with a written confession of the debt sued on, is not a judgment by confession. Cowan, McClung & Co. v. Lowry, 75 Tenn. 620, 1881 Tenn. LEXIS 158 (1881).

3. Recitals Not Amounting to Confessed Judgment.

A confessed judgment under a power of attorney is not required to recite that the power was proved. It is sufficient for the judgment to recite the power, when it is sufficient in form. Caruthers v. Caruthers, 70 Tenn. 264, 1879 Tenn. LEXIS 173 (1879).

4. Presence of Defendant Implied from Recitals.

Where the justice's judgment recites that “the defendant confessed judgment,” the personal presence of the defendant will be implied. Cowan, McClung & Co. v. Lowry, 75 Tenn. 620, 1881 Tenn. LEXIS 158 (1881).

5. Uncertainty Voiding Power.

A power of attorney annexed to a note empowering “any attorney of record within the United States or elsewhere to appear for me and confess judgment against me as of any term for above sum, with costs of suit and five percent attorney's commissions, etc.,” is void for uncertainty. Carlin v. Taylor, 75 Tenn. 666, 1881 Tenn. LEXIS 164 (1881).

A power conferred upon “any attorney or any officer” of a particular corporation is not void for uncertainty. Clay v. People's Finance & Thrift Co., 160 Tenn. 390, 25 S.W.2d 578, 1929 Tenn. LEXIS 118 (1930).

6. Power of Attorney to Confess — Effect in Determining Place Contract Executed.

Power of attorney, contained in a note authorizing an attorney to confess judgment for the makers, pertained to the remedy and was not a factor in ascertaining the place where the contract was made. Deposit Bank of Monroe County v. Cherry, 20 Tenn. App. 305, 98 S.W.2d 521, 1936 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1936).

7. Filing Written Evidence of Debt — Necessity.

Filing of written evidence of debt is not a prerequisite to the validity of the judgment. Arnold v. McCorkle, 65 Tenn. 301, 1873 Tenn. LEXIS 350 (1873).

8. Confessed Judgment Against Administrator.

A confessed judgment against an administrator, under a power of attorney, is not invalid, although both the judgment and the power bear date after the expiration of the statutory period for presenting claims after the qualification of the administrator. Caruthers v. Caruthers, 70 Tenn. 264, 1879 Tenn. LEXIS 173 (1879).

9. Incompetency of Justice — Waiver.

The written confession of a judgment before the justice of the peace related to either party is a substantial compliance with section requiring the waiver of the relationship of the justice to be in writing, and estops the party to question the validity of the judgment on account of such incompetency. Hilton v. Dan'l Miller & Co., 73 Tenn. 395, 1880 Tenn. LEXIS 148 (1880); Holmes v. Eason, 76 Tenn. 754, 1882 Tenn. LEXIS 6 (1882).

10. Judgment Above Jurisdictional Amount.

A judgment by confession for a sum not within the jurisdiction of the court rendering it is void as to the other creditors of the confessed judgment debtor, but it may not be void as to himself. Alley v. Myers, 2 Cooper's Tenn. Ch. 206 (1875). See Hilton v. Dan'l Miller & Co., 73 Tenn. 395, 1880 Tenn. LEXIS 148 (1880).

A justice of the peace is without jurisdiction to render judgment by confession for an amount above his statutory jurisdiction. Hughes v. Helms, 52 S.W. 460, 1898 Tenn. Ch. App. LEXIS 156 (1898).

11. Relief from Operation of Judgment.

After the confession, failure of consideration may not be set up by resort to chancery. Ragsdale v. Gossett, 70 Tenn. 729, 1879 Tenn. LEXIS 233 (1879).

A judgment by confession is a release of errors, and no appeal or writ of error lies. Hilton v. Dan'l Miller & Co., 73 Tenn. 395, 1880 Tenn. LEXIS 148 (1880).

The validity of the judgment cannot be contested by a stayor or garnishee, if the principal submits to the judgment. Cowan, McClung & Co. v. Lowry, 75 Tenn. 620, 1881 Tenn. LEXIS 158 (1881); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

Certiorari to justice of the peace lies where defendant was deprived of the right to show that the judgment, in fact, lacked authority as to confession by reason of his intervening bankruptcy. Doyle v. Fly, 1 Tenn. Civ. App. (1 Higgins) 263 (1910).

A bill to restrain enforcement of judgment may be filed on account of usury, under confession by third person authorized to confess. Clay v. People's Finance & Thrift Co., 160 Tenn. 390, 25 S.W.2d 578, 1929 Tenn. LEXIS 118 (1930); Hermitage Loan Co. v. Daykin, 165 Tenn. 503, 56 S.W.2d 164, 1932 Tenn. LEXIS 76 (1933).

12. Statute of Limitations.

Power to confess judgment on a note barred by six year statute is not exercisable and certiorari would issue to stay judgment of a justice of the peace and quash execution or attachment barred thereon. Williams v. Wilborne, 170 Tenn. 289, 95 S.W.2d 41, 1935 Tenn. LEXIS 134 (1936).

NOTES TO DECISIONS

1. Directory Nature.

This provision is directory to the court, and a failure to enforce it does not vitiate the judgment. Roberts v. Rose & Mathews, 21 Tenn. 145, 1840 Tenn. LEXIS 51 (1840).

2. Surety's Rights Under Section.

This section does not require notice to the principal, in order that he may have the principal, in order that he may have an opportunity to tender the indemnity. If no offer is made by the principal to defend and give counter security, the surety is not obliged to defend. The surety can confess judgment, if no such offer is made, for more than what is legally due, but he can only recover from his principal what is legally due. Williams v. Greer's Adm'rs, 5 Tenn. 235, 1817 Tenn. LEXIS 106 (1817); Newnan v. Campbell, 8 Tenn. 63, 8 Tenn. 69, 1827 Tenn. LEXIS 9 (1827).

3. Maker Seeking to Enjoin Judgment Against Endorser — Allegations.

Where the makers of a note put in a plea of nil debit and payment, but the accommodation endorser put in no plea, and upon notice from the makers that they will ask leave to file pleas setting up usury in bar of the action, the plaintiff dismissed the suit as to the makers, and took judgment by default against the accommodation endorser whereupon, at the same term, he took judgment over by motion against one of the makers who thereupon filed a bill to enjoin the judgment of plaintiff against such endorser and the latter's judgment against himself, without alleging that he offered to indemnify such endorser or to make defense, or that there was a fraudulent combination between the payee and such endorser there is no equity in the bill. Myers v. City Nat'l Bank, 1 Shan. 412 (1875).

NOTES TO DECISIONS

1. Construction.

Summary proceedings and remedies are in derogation of the common law, and must be strictly construed and pursued. Miller's Lessee v. Holt, 1 Tenn. 49, 1804 Tenn. LEXIS 16 (1799); M'Crea v. Galey, 1 Tenn. 251, 1807 Tenn. LEXIS 24 (1807); Rice v. Kirkman, 22 Tenn. 415, 1842 Tenn. LEXIS 115 (1842); Hall v. Tompkins, 28 Tenn. 592, 1848 Tenn. LEXIS 126 (1848); Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853); Voorhies v. Dickson, 33 Tenn. 348, 1853 Tenn. LEXIS 52 (1853); Hearn v. Ewin, Pendleton & Co., 43 Tenn. 399, 1866 Tenn. LEXIS 67 (1866); Wingfield v. Crosby, 45 Tenn. 241, 1867 Tenn. LEXIS 124 (1867); Stuart v. McCuistion, 48 Tenn. 427, 1870 Tenn. LEXIS 82 (1870); Fry v. Britton, 49 Tenn. 606, 1871 Tenn. LEXIS 50 (1871); Wynne v. Taylor, 52 Tenn. 691, 1871 Tenn. LEXIS 297 (1871); Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873); Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875); Erkman v. Carnes, 101 Tenn. 136, 45 S.W. 1067, 1898 Tenn. LEXIS 41 (1898); Morgan v. Betterton, 109 Tenn. 84, 69 S.W. 969, 1902 Tenn. LEXIS 60 (1902).

No strained construction will be given to make the statute reach cases not within the obvious purview. Smith v. Wells, 13 Tenn. 201, 13 Tenn. 202, 1833 Tenn. LEXIS 137 (1833).

Venditioni exponas is an execution within the meaning of the statutes giving remedies by motion for defaults as to executions. Webb v. Armstrong, 24 Tenn. 379, 1844 Tenn. LEXIS 84 (1844); Henry v. Wilson, 77 Tenn. 176, 1882 Tenn. LEXIS 33 (1882).

2. Summary Judgments Generally.

Where a court proceeds according to the course of the common law, all presumptions are in favor of the correctness of its action; but where it proceeds in a summary way, under a statutory authority, the record must show that the authority was strictly pursued. To make a judgment by motion valid, all material facts authorizing the exercise of the jurisdiction must affirmatively appear. Accordingly, the judgment must set forth a state of facts authorizing its rendition, and if any one of such facts be missing, the judgment will be void. Marshal v. Hill, 16 Tenn. 101, 1835 Tenn. LEXIS 52 (1835); Scott v. Lanham, 16 Tenn. 420, 1835 Tenn. LEXIS 97 (1835); Ferrel v. Finch, 16 Tenn. 432, 1835 Tenn. LEXIS 99 (1835); Hubbard v. Cole, 17 Tenn. 502, 1836 Tenn. LEXIS 94 (1836); McNairy v. Eastland, 18 Tenn. 310 (1837); Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839); Snell v. Rawlings, 22 Tenn. 85, 1842 Tenn. LEXIS 34 (1842); Barry v. Patterson, 22 Tenn. 313, 1842 Tenn. LEXIS 91 (1842); Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844); Ragsdale v. State, 32 Tenn. 416, 1852 Tenn. LEXIS 93 (1852); Cannon v. Wood, 34 Tenn. 177, 1854 Tenn. LEXIS 29 (1854); Haynes v. Gates, 39 Tenn. 598, 1859 Tenn. LEXIS 286 (Tenn. Apr. 1859); McDaniel v. Goodall, 42 Tenn. 391, 1865 Tenn. LEXIS 80 (1865); Crockett v. Parkison, 43 Tenn. 219, 1866 Tenn. LEXIS 40 (1866); Stuart v. McCuistion, 48 Tenn. 427, 1870 Tenn. LEXIS 82 (1870); Rucker v. Moore, 48 Tenn. 726, 1870 Tenn. LEXIS 139 (1870); Wynne v. Taylor, 52 Tenn. 691, 1871 Tenn. LEXIS 297 (1871); Gunn v. Boone, 54 Tenn. 8, 1871 Tenn. LEXIS 409 (1871); Anderson v. Binford, 61 Tenn. 310, 1872 Tenn. LEXIS 377 (1872); Ex parte Savage, 63 Tenn. 337, 1874 Tenn. LEXIS 257 (1874); Galbraith v. Chestnutt, 2 Shan. 99 (1876).

In summary proceedings, as well before justices (now judges of the courts of general sessions) as before courts of record, every fact which is necessary to give the court jurisdiction and to authorize the judgment must be set out in the judgment as having been made to appear. Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844); Wynne v. Taylor, 52 Tenn. 691, 1871 Tenn. LEXIS 297 (1871).

While in the statute no specification is made in respect to summary judgment against lendee of court funds, none was needed, as summary power in such case has existed from time immemorial over lendee and his sureties. Vaughn v. Tealey, 39 S.W. 868, 1896 Tenn. Ch. App. LEXIS 93 (1896).

Unless bond so conditioned as to justify a summary judgment, court will not read such condition into bond, and such judgment must recite the jurisdictional facts, such as nature, condition and penalty of bond. Phillips v. Landess, 152 Tenn. 682, 280 S.W. 694, 1925 Tenn. LEXIS 113 (1926).

3. —Jury.

The motion is regularly triable by the court, without a jury, and the proof should be heard by the court, and recited in the judgment as having appeared to the court. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Crowder v. Bradley, 1 Shan. 643 (1876). See Kirkpatrick v. State, 19 Tenn. 124, 1838 Tenn. LEXIS 32 (1838); Coffee v. Neely, 49 Tenn. 304, 1871 Tenn. LEXIS 10 (1871); Coulter v. Davis, 81 Tenn. 451, 1884 Tenn. LEXIS 57 (1884).

Where in the trial of a motion against an officer for nonreturn of an execution, the matter should not be submitted to a jury, such improper practice is not alone reversible error, and if disputed facts are submitted to the jury, it is nevertheless the duty of the judge to render proper judgment on the facts before him. Crowder v. Bradley, 1 Shan. 643 (1876).

4. —Appeal.

Although the facts are not recited in the judgment by motion, if they are set out in the bill of exceptions, the appellate court can see that the court below had jurisdiction, and will affirm the judgment. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Gunn v. Boone, 54 Tenn. 8, 1871 Tenn. LEXIS 409 (1871).

The recitals of all the necessary facts in a judgment by motion are not conclusive, if the bill of exceptions does not contain the evidence of the facts recited. Steele v. Davis, 52 Tenn. 75, 1871 Tenn. LEXIS 235 (1871).

The rule requiring summary judgments to recite fully the jurisdictional facts does not apply to appellate judgments. Bittick v. McEwen, 54 Tenn. 1, 1871 Tenn. LEXIS 408 (1871).

On appeal from judgment dismissing a motion, the appellate court cannot, on the proofs filed and recited in the motion, without a bill of exceptions, render judgment final on the merits. State v. Allison, 55 Tenn. 1, 1872 Tenn. LEXIS 111 (1872).

5. Proceedings Against Officers Serving Process Generally.

6. —Notice of Motion.

Notice of a motion against an officer for failure to return an execution need not require him to produce the execution. Armstrong v. Apple, 42 Tenn. 280, 1865 Tenn. LEXIS 57 (1865).

7. —Officer Against Whom Motion Made.

As the motion is given against the officer “to whom an execution is directed,” this excludes a deputy sheriff, as the execution is directed to the sheriff, and not to the deputy, and for the default of the deputy, the motion should be made against the sheriff and his sureties. Snell v. Rawlings, 22 Tenn. 85, 1842 Tenn. LEXIS 34 (1842); Rose v. Lane, 22 Tenn. 218, 1842 Tenn. LEXIS 72 (1842), criticized, Reichman v. Harris, 252 F. 371, 1918 U.S. App. LEXIS 2071 (6th Cir. Tenn. 1918); Vance v. Campbell, 27 Tenn. 524, 1847 Tenn. LEXIS 123 (1847); Robertson v. Lessan & Dougan, 47 Tenn. 159, 1869 Tenn. LEXIS 27 (1869); State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326, 1905 Tenn. LEXIS 67 (1905).

8. —Time of Making Return.

Evidence did not sustain the contention that return was not made on the first day of the term. Roberts v. Bostick, 25 Tenn. 232, 1845 Tenn. LEXIS 67 (1845).

Shortly before the return day the sheriff receives the execution, he must make due return thereof by the return day, or incur the statutory penalty, though, if tendered to him too late to make a levy and return it, he might perhaps refuse to receive it, but he could not refuse to receive it simply because he would not have time to make sale by the return day. McCrory v. Chaffin, 31 Tenn. 307, 1851 Tenn. LEXIS 73 (1851); Eaken & Co. v. Boyd, 37 Tenn. 204, 1857 Tenn. LEXIS 107 (1857), criticized, Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); W. B. Chaffin & Bro. v. Stuart, 60 Tenn. 296, 1872 Tenn. LEXIS 493 (1872); Greer v. Milam, 3 Shan. 732 (1876).

The language of the statute is imperative on the officer to return the execution within the time prescribed by law, and if he fails to make such return, he and his sureties are liable. Armstrong v. Apple, 42 Tenn. 280, 1865 Tenn. LEXIS 57 (1865).

9. —Conclusiveness of Return.

The return must show that the sheriff has done what the law requires of him, or a good reason why not. The return must be full and complete in itself, embracing every matter required to be stated. If a delivery bond was taken and forfeited, these facts form a proper and necessary part of the return, and their existence can be known to the court only from the certified return of the sheriff upon the writ. Therefore, in a proceeding directly impeaching the sufficiency of such return, and seeking to hold the sheriff responsible on account thereof, it is not permissible to look beyond the return to any extrinsic matter in aid of its defects. Union Bank v. Barnes, 29 Tenn. 244, 1849 Tenn. LEXIS 57 (1849); McCrory v. Chaffin, 31 Tenn. 307, 1851 Tenn. LEXIS 73 (1851); Eaken & Co. v. Boyd, 37 Tenn. 204, 1857 Tenn. LEXIS 107 (1857), criticized, Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858); Wingfield v. Crosby, 45 Tenn. 241, 1867 Tenn. LEXIS 124 (1867); Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Crowder v. Bradley, 1 Shan. 643 (1876); Greer v. Milam, 3 Shan. 732 (1876); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895); Nichol v. Ridley, 13 Tenn. 62, 13 Tenn. 63, 1833 Tenn. LEXIS 107 (1833). SeeTrigg v. McDonald, 21 Tenn. 386, 1841 Tenn. LEXIS 22 (1841); Raines v. Childress, 21 Tenn. 449, 1841 Tenn. LEXIS 43 (1841); Green v. Lanier, 52 Tenn. 662, 1871 Tenn. LEXIS 294 (1871).

On motion against a sheriff and sureties for nonreturn, insufficient or false return, nothing but the face of the return is looked to, and extrinsic evidence to contradict is inadmissible. Farmers' Bank v. Wyatt, 163 Tenn. 31, 40 S.W.2d 402, 1930 Tenn. LEXIS 135 (1931).

10. —Particular Requisites for Judgment.

Requisites that must particularly appear are as follows:

That motion was made at the next term, or that notice was given. Singleton v. Bell, 3 Tenn. 267 (1813).

Grounds of the motion. Cheatham v. Jones & Co., 6 Tenn. 37, 1818 Tenn. LEXIS 17 (1818); Francis v. Washburn, 6 Tenn. 294, 6 Tenn. 293, 1818 Tenn. LEXIS 58 (1818); Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853); Johnson v. Bruster, 61 Tenn. 99, 1872 Tenn. LEXIS 346 (1872).

Description of the execution, giving the name of the defendant. Cheatham v. Jones & Co., 6 Tenn. 37, 1818 Tenn. LEXIS 17 (1818); Francis v. Washburn, 6 Tenn. 294, 6 Tenn. 293, 1818 Tenn. LEXIS 58 (1818); Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853).

Exception as to strictness of rule in motion judgments against officers. Cook v. Smith, 9 Tenn. 148, 1829 Tenn. LEXIS 29 (1829); Cannon v. Wood, 34 Tenn. 177, 1854 Tenn. LEXIS 29 (1854).

Jurisdictional facts. Garner v. Carrol, 15 Tenn. 364, 15 Tenn. 365, 1835 Tenn. LEXIS 12 (1835); Ragsdale v. State, 32 Tenn. 416, 1852 Tenn. LEXIS 93 (1852).

In whose favor the execution issued. Marshal v. Hill, 16 Tenn. 101, 1835 Tenn. LEXIS 52 (1835).

Facts showing failure to make due and proper return must be stated, not merely the legal conclusion that due and proper return was not made. Snell v. Rawlings, 22 Tenn. 85, 1842 Tenn. LEXIS 34 (1842).

Where the motion is against the sheriff for the default of his deputy, the deputyship must be explicitly stated, and it must be explicitly stated that it appeared to the court that the sureties were such. Snell v. Rawlings, 22 Tenn. 85, 1842 Tenn. LEXIS 34 (1842); Ex parte Savage, 63 Tenn. 337, 1874 Tenn. LEXIS 257 (1874).

Suretyship of the sureties, when defendants. Barry v. Patterson, 22 Tenn. 313, 1842 Tenn. LEXIS 91 (1842); Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844).

Recital of judgment on which execution issued. Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844).

Due service of notice where notice was necessary. Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844); Curry v. Munford, 52 Tenn. 61, 1871 Tenn. LEXIS 233 (1871).

The motion must contain the necessary recitals, which cannot be gathered from a notice containing them, although spread upon the minutes. Johnson v. Bruster, 61 Tenn. 99, 1872 Tenn. LEXIS 346 (1872).

11. —Amendment of Motion.

The motion for failure to return an execution or for a false return is in the nature of a pleading, and substantial certainty is all that is required; and such motion may be amended. Hix v. Cornelison, 47 Tenn. 299, 1869 Tenn. LEXIS 45 (1869).

12. —Waiver.

The issuance of an alias execution or receipts for portion of an execution does not operate to waive right to motion. Dunnaway v. Collier, 49 Tenn. 10, 1870 Tenn. LEXIS 181 (1870).

Taking out alias execution and receiving the money collected thereon is not a waiver of nonreturn or insufficient return but is a waiver of false return. Sawyers v. Glenn, 58 Tenn. 754, 1872 Tenn. LEXIS 329 (1872).

13. —Defenses.

A tender of the amount of the execution by the officer, after the notice and before the motion, is no defense, unless the tender be accepted, for the penalty of 12½ percent, as damages, cannot be defeated in this way. Chaffin v. Crutcher, 34 Tenn. 360, 1854 Tenn. LEXIS 53 (1854); Young v. Donaldson, 49 Tenn. 52, 1870 Tenn. LEXIS 189 (1870).

One of several plaintiffs in a judgment, or one of several owners of a judgment may bind his coplaintiffs or coowners by a receipt of payment, release, or other act, and may, consequently, protect the sheriff by his acts or instructions. State use of Meek v. Rose, 71 Tenn. 531, 1879 Tenn. LEXIS 112 (1879).

14. —Judgment.

The judgment need not recite the evidence sustaining the facts averred. Scott v. Lanham, 16 Tenn. 420, 1835 Tenn. LEXIS 97 (1835); Ferrel v. Finch, 16 Tenn. 432, 1835 Tenn. LEXIS 99 (1835); Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839); Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844).

The judgment must set out the facts and not merely conclusions of law. Snell v. Rawlings, 22 Tenn. 85, 1842 Tenn. LEXIS 34 (1842).

If, by concealment of fact of payments, judgment is taken for a greater than true sum, it is a fraud on the officer and on the law. Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851).

Where two judgments were rendered for the same debt against different parties, and executions issued, on a motion against a sheriff for default in returning the executions, the court will only render one judgment against the sheriff. Bank of Tennessee v. Cannon, 49 Tenn. 428, 1871 Tenn. LEXIS 28 (1871).

A judgment based upon a motion, if deficient in proper recitals, is void, though such motion may refer to a notice, already spread upon the minutes, which embraces the necessary facts. Johnson v. Bruster, 61 Tenn. 99, 1872 Tenn. LEXIS 346 (1872).

A judgment on motion in favor of a sheriff precludes a subsequent suit for the same default, where the court had jurisdiction on the motion to render a judgment against the sheriff. State v. McCallum, 61 Tenn. 101, 1872 Tenn. LEXIS 347 (1872).

15. —Costs.

Although the costs are collected in the name of the plaintiff in the execution, he has no interest in them, and they are to be paid to the parties entitled to them, and in whose favor they are taxed. Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851); Carey v. Campbell, 35 Tenn. 62, 1855 Tenn. LEXIS 14 (1855); State v. Nance, 69 Tenn. 644, 1878 Tenn. LEXIS 148 (1878).

16. Nonreturn of Execution.

17. —Return — Requisites.

The return of an execution is the written statement by the sheriff, certified to the court, under sanction of his oath and official responsibility, of what he has done touching the execution of the writ, and the return must be full and complete in itself, embracing every matter required to be stated. Union Bank v. Barnes, 29 Tenn. 244, 1849 Tenn. LEXIS 57 (1849); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882); Farmers' Bank v. Wyatt, 163 Tenn. 31, 40 S.W.2d 402, 1930 Tenn. LEXIS 135 (1931).

It is not a “return” merely to hand in the writ, and there must be a proper statement endorsed on it. Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858).

When process is brought into court with official endorsement thereon, whether true or false, it is a return. Farmers' Bank v. Wyatt, 163 Tenn. 31, 40 S.W.2d 402, 1930 Tenn. LEXIS 135 (1931).

18. —Execution Against Officer Himself.

A sheriff is not obliged to accept an execution against himself, but if he does so, he must make due return thereof. Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872).

19. —Proof Required.

To sustain a motion for the nonreturn of an execution, it must be proved affirmatively that the execution was not returned. Gibson v. Martin, 26 Tenn. 127, 1846 Tenn. LEXIS 76 (1846).

20. —Defenses to Nonreturn.

21. — —Expiration of Term of Office.

The officer is not liable upon motion for nonreturn of an execution where his term of office expired before the return day. Neil v. Beaumont, Vanleer & Co., 40 Tenn. 556, 1859 Tenn. LEXIS 163 (1859); State use of Nolin v. Parchmen, 40 Tenn. 609, 1859 Tenn. LEXIS 180 (1859); Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872). See Todd v. Jackson, 22 Tenn. 398, 1842 Tenn. LEXIS 108 (1842); Sherrell v. Goodrum, 22 Tenn. 419, 1842 Tenn. LEXIS 116 (1842); Campbell v. Cobb, 34 Tenn. 18, 1854 Tenn. LEXIS 4 (1854); Howell v. Donaldson, 54 Tenn. 206, 1872 Tenn. LEXIS 36 (1872).

22. — —Insolvency of Defendant.

It was a good defense to a common law action on an officer's bond for nonreturn of an execution that the defendant was insolvent and plaintiff was not injured by the nonreturn. Wood v. Orr, 18 Tenn. 505, 1837 Tenn. LEXIS 69 (1837); Fowler v. Bledsoe, 27 Tenn. 509, 1847 Tenn. LEXIS 117 (1847).

It is no defense to the motion for the nonreturn of an execution that the defendant was insolvent, and that, therefore, the plaintiff was not injured by the nonreturn. Webb v. Armstrong, 24 Tenn. 379, 1844 Tenn. LEXIS 84 (1844); Fowler v. McDaniel, 53 Tenn. 529, 1871 Tenn. LEXIS 390 (1871); W. B. Chaffin & Bro. v. Stuart, 60 Tenn. 296, 1872 Tenn. LEXIS 493 (1872); Crowder v. Bradley, 1 Shan. 643 (1876); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895). But see Billingsly v. Rankin, 32 Tenn. 82, 1852 Tenn. LEXIS 20 (1852).

23. — —Instructions or Intermeddling of Plaintiff.

A motion will not lie against the officer for the nonreturn of an execution where the nonreturn was caused by the instructions or intermeddling of the plaintiff. Kennedy v. Smith, 15 Tenn. 472, 1835 Tenn. LEXIS 27 (1835); Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Robinson v. Harrison, 26 Tenn. 189, 1846 Tenn. LEXIS 99 (1846); Koger v. Donnell, 38 Tenn. 377, 1858 Tenn. LEXIS 194 (Tenn. Dec. 1858); Shaw v. Patterson, 2 Cooper's Tenn. Ch. 171 (1874); State use of Meek v. Rose, 71 Tenn. 531, 1879 Tenn. LEXIS 112 (1879); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

The plaintiff's agreement with the officer to postpone the sale, made after the levy, is no excuse for his not making due return of the execution. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

The fact that the plaintiff in the execution authorized the officer to return the execution “to be renewed” will not excuse him for returning it on another day than that required by law. Bershears v. Warner, 37 Tenn. 676, 1858 Tenn. LEXIS 95 (1858).

Directions by the plaintiff to hold up execution but not as to return of execution did not excuse its nonreturn. Bently v. Kirk, 60 Tenn. 385, 1872 Tenn. LEXIS 517 (1873).

24. — —Mistake or Ignorance of Law.

Mistake or ignorance of law in that officer construed 30 days to mean a calendar month did not excuse nonreturn. Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

25. — —Officer Agent of Plaintiff.

It was no excuse for not making due return of execution that officer was agent of plaintiff for collection of debts. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Crowder v. Bradley, 1 Shan. 643 (1876).

26. — —Payment Before Return Day.

Payment to creditor before return day of execution is a defense defeating a motion for nonreturn of execution, to the extent of the payment. Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851).

27. — —Taking Out Alias Execution.

The taking out of an alias execution and receiving the money collected thereon is not a waiver of the right to move for the nonreturn or for an insufficient return of the previous execution, but any collection on the alias must be duly credited. Doyle v. Glenn, 23 Tenn. 309, 1843 Tenn. LEXIS 90 (1843); Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851); Barnes v. White, 32 Tenn. 442, 1852 Tenn. LEXIS 95 (1852); Wright v. Johnson, 35 Tenn. 407, 1855 Tenn. LEXIS 80 (1855); Dunnaway v. Collier, 49 Tenn. 10, 1870 Tenn. LEXIS 181 (1870); Young v. Donaldson, 49 Tenn. 52, 1870 Tenn. LEXIS 189 (1870); Sawyers v. Glenn, 58 Tenn. 754, 1872 Tenn. LEXIS 329 (1872); W. B. Chaffin & Bro. v. Stuart, 60 Tenn. 296, 1872 Tenn. LEXIS 493 (1872); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

28. — —Tender.

A tender after notice and before motion is no defense. Chaffin v. Crutcher, 34 Tenn. 360, 1854 Tenn. LEXIS 53 (1854); Young v. Donaldson, 49 Tenn. 52, 1870 Tenn. LEXIS 189 (1870); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

29. —Action in Appellate Court.

A motion in the appellate court for the nonreturn of an execution issued from that court is not an independent suit, but is only a means of enforcing a judgment already rendered, a proceeding incidental to the appellate jurisdiction of the court, and there is no litigation tax upon such motion. Motion Against Curry, 59 Tenn. 51, 1873 Tenn. LEXIS 26 (1873); Woodward v. Alston, 59 Tenn. 581, 1873 Tenn. LEXIS 118 (1873); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880).

30. False or Insufficient Return.

31. —Illegal Return.

It is not a “due return,” if the endorsement be such as is not authorized by law, whether it be true or false. Harman v. Childress, 11 Tenn. 326, 11 Tenn. 327, 1832 Tenn. LEXIS 54 (1832).

An insufficient and illegal return of an execution is no return. State v. McDonald, 28 Tenn. 606, 1848 Tenn. LEXIS 130 (1849). See Green v. Lanier, 52 Tenn. 662, 1871 Tenn. LEXIS 294 (1871); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882).

32. —Amendment of Return.

Where there has been a false or insufficient return, it may be amended at any time before the motion is made, even after notice, and the liability thus obviated; but the amendment cannot be made after the entry of the motion. Mullins v. Johnson, Rayburn & Co., 22 Tenn. 396, 1842 Tenn. LEXIS 107 (1842); Broughton v. Allen, 25 Tenn. 96, 1845 Tenn. LEXIS 30 (1845); Howard v. Union Bank, 26 Tenn. 26, 1846 Tenn. LEXIS 41 (1846); Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858); King v. Breeden, 42 Tenn. 455, 1865 Tenn. LEXIS 87 (1865); Beal v. Smithpeter, 65 Tenn. 356, 1873 Tenn. LEXIS 364 (1873); Standifer v. May, 163 Tenn. 210, 42 S.W.2d 343, 1931 Tenn. LEXIS 101 (1931).

33. —Motion to Show Ground.

The sufficiency of the statement of the return cannot be tested by a motion for false or nonreturn, but the motion must be for making an insufficient return. Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853); Morgan v. Betterton, 109 Tenn. 84, 69 S.W. 969, 1902 Tenn. LEXIS 60 (1902).

34. —Falsity or Insufficiency to Appear on Return.

The falsity or insufficiency of the return must be such as is apparent on the face of the execution. An instance of such would be a return that property was levied on too late to sell, when the very date of the levy itself showed to the contrary. Probably the most common actually false return is that of “no property to be found”; but this cannot be reached by a motion for a false return, because the falsity can be made out only by the extrinsic evidence. In such case, the plaintiff must resort to his common law action for negligence in not finding and levying on property. Trigg v. McDonald, 21 Tenn. 386, 1841 Tenn. LEXIS 22 (1841); Raines v. Childress, 21 Tenn. 449, 1841 Tenn. LEXIS 43 (1841); Fussell v. Greenfield, 33 Tenn. 437, 1853 Tenn. LEXIS 69 (1853); Eaken & Co. v. Boyd, 37 Tenn. 204, 1857 Tenn. LEXIS 107 (1857), criticized, Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858); Howell v. Donaldson, 54 Tenn. 206, 1872 Tenn. LEXIS 36 (1872); Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895); Farmers' Bank v. Wyatt, 163 Tenn. 31, 40 S.W.2d 402, 1930 Tenn. LEXIS 135 (1931); First Nat'l Bank v. Tate, 15 Tenn. App. 462, — S.W.2d —, 1932 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1932).

Endorsement of the words “in bankruptcy” is an adequate return by an officer on an execution where the question involves alone the sufficiency of the return upon its face, and not the question of the officer's diligence in the performance of his duty otherwise thereunder. McCoy v. Lippner Auto Co., 150 Tenn. 482, 265 S.W. 988, 1924 Tenn. LEXIS 23 (1924).

35. —Sufficiency of Return.

A return that, there being no further personalty of defendants, therefore levy has been made on certain described land, this being too late for a sale, was held not to expose the sheriff to a motion for insufficient return. Trigg v. McDonald, 21 Tenn. 386, 1841 Tenn. LEXIS 22 (1841).

Where the sheriff levied on personalty, twenty (20) days before the return day, and took a delivery bond therefor, which was forfeited, he was not liable for not having levied early enough to have left time for a levy and sale under the forfeited delivery bond, for he was not bound to anticipate the forfeiture of the delivery bond, and, hence, his return showed a sufficient reason for not making the money. Raines v. Childress, 21 Tenn. 449, 1841 Tenn. LEXIS 43 (1841).

A return by the sheriff that he had retained the money to discharge the damages sustained by levying another execution in favor of the same plaintiff, where an indemnity bond had been given, was held to be insufficient. Hinkle v. Blake, 21 Tenn. 574, 1841 Tenn. LEXIS 72 (1841).

A return showing simply, “Not satisfied,” is no return, and the sheriff and his sureties are made liable thereby for the amount of the execution, with damages and costs. Kirkmans v. Rice, 23 Tenn. 267, 1843 Tenn. LEXIS 77 (1843); Dunnaway v. Collier, 49 Tenn. 10, 1870 Tenn. LEXIS 181 (1870).

“Stopped by order of plaintiff” is a good return of an execution. State v. McDonald, 28 Tenn. 606, 1848 Tenn. LEXIS 130 (1849).

The return, “Came to hand the day issued, and nothing made for lack of time,” is an insufficient return, although there was not time, after the issuance of the execution, for a levy and sale, for there might have been at least a levy. McCrory v. Chaffin, 31 Tenn. 307, 1851 Tenn. LEXIS 73 (1851).

Where the execution came to the sheriff's hands on the 26th of September, returnable the 26th of October, and on the 20th of October he made a levy, and thus returned the execution, “Returned for want of time to advertise and sell,” this was held to be insufficient, as it showed no excuse for delaying the levy until too late to advertise to sell. Smith v. Gilmore, 35 Tenn. 481, 1856 Tenn. LEXIS 13 (1856); Eaken & Co. v. Boyd, 37 Tenn. 204, 1857 Tenn. LEXIS 107 (1857), criticized, Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); Howell v. Donaldson, 54 Tenn. 206, 1872 Tenn. LEXIS 36 (1872); W. B. Chaffin & Bro. v. Stuart, 60 Tenn. 296, 1872 Tenn. LEXIS 493 (1872); Greer v. Milam, 3 Shan. 732 (1876); Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

A return where there were several defendants, all primarily liable, that no personal property of one of them had been found, and that therefore certain land had been levied on, for which there were no bidders, was held to be insufficient, as not showing why the money had not been made out of the personalty of the other defendants. Hassell v. Southern Bank of Kentucky, 39 Tenn. 381, 1859 Tenn. LEXIS 231 (1859).

Where the sheriff received the execution September 21, returnable to December 4, and returned it thus: “There being no personal property, etc., having searched for same until date of this levy, November 1, 1871, I, therefore, levy,” defendant waiving advertisement and notice and agreeing to a sale on December 2, but there being no sale then for want of bidders, the return was not insufficient, as the sheriff could not foresee that there would be no bidders. Howell v. Donaldson, 54 Tenn. 206, 1872 Tenn. LEXIS 36 (1872).

The words “in bankruptcy,” clearly conveying the information that all the property of the execution debtor has been impounded as a result of the institution of bankruptcy proceedings, constitute an adequate return by an officer on an execution, for the filing of a petition in bankruptcy is a caveat to all the world. McCoy v. Lippner Auto Co., 150 Tenn. 482, 265 S.W. 988, 1924 Tenn. LEXIS 23 (1924).

36. —Defenses to False or Insufficient Return.

Officer was not liable for an insufficient return where the delinquency was due to statements made to the officer by the plaintiff's agent. Billingsly v. Rankin, 32 Tenn. 82, 1852 Tenn. LEXIS 20 (1852).

If money is collected by another officer on alias execution officer previously making insufficient return is released from the liability even though the collection officer fails to pay the money over to the execution creditor. Wright v. Johnson, 35 Tenn. 407, 1855 Tenn. LEXIS 80 (1855).

It may be shown, by extrinsic evidence, in defense to the motion, that the insufficiency of the return of the execution was caused by the plaintiff himself. Granberry v. Crosby, 54 Tenn. 579, 1872 Tenn. LEXIS 88 (1872); State use of Meek v. Rose, 71 Tenn. 531, 1879 Tenn. LEXIS 112 (1879).

The rule that an officer is not bound to execute void process does not authorize him to set up as a defense that the judgment awarding the execution was void. Perdue v. Dodd, 69 Tenn. 710, 1878 Tenn. LEXIS 164 (1878); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895). See Atkinson v. Micheaux, 20 Tenn. 312, 1839 Tenn. LEXIS 53 (1839); Cannon v. Wood, 34 Tenn. 177, 1854 Tenn. LEXIS 29 (1854); Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881).

37. —Estoppel.

The officer is estopped from relying, in his defense to the motion for an insufficient return, upon a different excuse from the one stated in his return. Perdue v. Dodd, 69 Tenn. 710, 1878 Tenn. LEXIS 164 (1878).

Motion for insufficient return of execution was properly dismissed because of judicial estoppel, where movant had, by sworn answer and cross bill, in another case, set up such levy and insisted that it was valid. Fidelity Trust Co. v. Norton, 10 Tenn. App. 132, — S.W.2d —, 1929 Tenn. App. LEXIS 13 (Tenn. Ct. App. 1929).

38. Nonpayment of Money Collected.

Judgment in county court (now court of general sessions) on motion against constable for money collected as agent was invalid as money was not collected under an execution. M'Crea v. Galey, 1 Tenn. 251, 1807 Tenn. LEXIS 24 (1807).

A motion will not lie against the sheriff for city taxes collected when not authorized by law to collect the taxes. Board of Mayor of Brownsville v. Lyle, 2 Shan. 640 (1878).

39. —Payment to Party Entitled.

If applied to before he has returned the money, the sheriff ought to pay the same to the person entitled to receive it, but if not applied to, he should return the money into the office, together with the writ of execution, otherwise, he is liable to motion. Nelson v. Williams, 5 Tenn. 161, 1817 Tenn. LEXIS 80 (1817); Cock v. Cummins, 5 Tenn. 191, 1817 Tenn. LEXIS 90 (1817).

40. —Payment into Court.

Where there is doubt as to who is entitled to the money, the sheriff ought to pay it into court. The court has power to direct the application of money paid in, and, when necessary, it may order a bill of interpleader. Atkinson v. Cooper, 21 Tenn. 361, 1841 Tenn. LEXIS 19 (1841); Wiley v. Bridgman, 38 Tenn. 68, 1858 Tenn. LEXIS 121 (Tenn. Sep. 1858).

The sheriff's payment to the plaintiff, or according to his direction, is good, although the beneficial interest may have been previously transferred, where the sheriff had no notice thereof. Atkinson v. Cooper, 21 Tenn. 361, 1841 Tenn. LEXIS 19 (1841).

41. —Attachment and Garnishment.

Money levied on or received for property levied on and sold, and held to satisfy the execution, cannot be attacked in the officer's hands, by garnishment. Pawley v. Gains, 1 Tenn. 208, 1806 Tenn. LEXIS 8 (1806). See Tucker v. Atkinson, 20 Tenn. 300, 1839 Tenn. LEXIS 51 (1839); Drane v. McGavock, 26 Tenn. 132, 1846 Tenn. LEXIS 79 (1846).

42. —Sureties of Officers — Liability.

Where plaintiff issued an execution on which the coroner recovered but did not bring the money into court, plaintiff was entitled to judgment on motion against coroner but not against his sureties without notice. Metcalf v. Coroner Of Grainger, 1 Tenn. 61, 1804 Tenn. LEXIS 18 (1804).

Where the officer, upon tendering the money to the plaintiff, was permitted to keep it for some time, the officer's sureties were thereby discharged. Wells v. Gant, 12 Tenn. 491, 1833 Tenn. LEXIS 84 (1833).

Where the officer acts as a private agent and not in his official capacity, his sureties are not liable. Crittenden v. Terrill, 39 Tenn. 588, 1859 Tenn. LEXIS 283 (1859).

43. —Res Judicata.

A judgment in favor of a sheriff, on a motion against him for the default of his deputy in failing to pay over moneys collected by him, rendered on the ground that there was a variance between the notice and the officer's receipt in the description of the claims, is not a judgment upon the merits, and no bar to a subsequent proceeding against the defaulting deputy. Witcher v. Oldham, 36 Tenn. 220, 1856 Tenn. LEXIS 85 (1856). See Hurst v. Means, 34 Tenn. 546, 1855 Tenn. LEXIS 95 (1855).

44. Relation to Other Statutes.

Since the enactment of § 8-8-301, the remedy provided by this section is no longer available against a sheriff for the act or failure to act of a deputy to whom the sheriff has entrusted the service and return of an execution directed to the sheriff. Rogers v. Anderson, 580 S.W.2d 782, 1979 Tenn. LEXIS 430 (Tenn. 1979).

NOTES TO DECISIONS

1. Excess is Not in Custody of Law.

Excess is not in the custody of the law, and may, therefore, be subjected, by attachment or execution to other claims against the defendant, and the return of the officer that it has been accordingly applied will be a valid one. Hickman v. Matlock, 1 Tenn. 252, 1807 Tenn. LEXIS 25 (1807); Tucker v. Atkinson, 20 Tenn. 300, 1839 Tenn. LEXIS 51 (1839); Mays v. Frazer, 3 Cooper's Tenn. Ch. 413 (1877).

NOTES TO DECISIONS

1. Payment in Money — Necessity.

An arrangement between the debtor and the officer, as the equivalent of collection, will not sustain the motion. There must be an actual receipt of the money by the officer, in order to sustain the motion or to discharge the debtor. Haynes v. Bridge, Townley & Co., 41 Tenn. 32, 1860 Tenn. LEXIS 7 (1860).

A motion lies against a constable for collection of a justice's (now general sessions judge's) judgment without execution, though paid in bank bills which are not shown to be current and convertible, where he had for collection the note on which he took a judgment. He cannot be heard to dispute his act or to defend himself, on the ground that he acted without authority or in violation of law. Rigsby v. Walter, 47 Tenn. 147, 1869 Tenn. LEXIS 23 (1869).

2. Sureties — Liability for Payment After Term.

The officer's sureties are not liable where he received the money after the expiration of his term of office. Atkins v. Baily, 17 Tenn. 111, 1836 Tenn. LEXIS 25 (1836); Crittenden v. Terrill, 39 Tenn. 588, 1859 Tenn. LEXIS 283 (1859); Neil v. Beaumont, Vanleer & Co., 40 Tenn. 556, 1859 Tenn. LEXIS 163 (1859); State use of Nolin v. Parchmen, 40 Tenn. 609, 1859 Tenn. LEXIS 180 (1859).

Where officer acted both in his official capacity and as agent of plaintiff for collection of debts, actions of officer after the expiration of his term of office did not bind the sureties on his bond. Crittenden v. Terrill, 39 Tenn. 588, 1859 Tenn. LEXIS 283 (1859).

3. Jurisdictional Amount.

A motion will not lie against a constable and his sureties for money collected by him on a note, the amount due upon which at the time of collection was above the justice's (now general sessions judge's) jurisdiction, although the constable gave a receipt for the collection of the note, in his official capacity. Kiggin v. Sharkey, 71 Tenn. 707, 1879 Tenn. LEXIS 134 (1879).

4. Officer Acting as Agent.

Where a constable received a note for collection, and sold or disposed of it in some way for his own benefit, a motion against him and his sureties would not lie before a justice (now general sessions judge). McGreggor v. McCorkle, 22 Tenn. 578, 1842 Tenn. LEXIS 150 (1842).

It is no excuse for not making due return that officer was agent of plaintiff for collection of debts. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Crowder v. Bradley, 1 Shan. 643 (1876).

Where a constable gave his receipt for a note to be accounted for according to law, he is not liable for neglecting to take out an execution upon the judgment taken by him on the note, where the maker of the note was insolvent, and nothing could have been made out of him by execution. Fowler v. Bledsoe, 27 Tenn. 509, 1847 Tenn. LEXIS 117 (1847).

NOTES TO DECISIONS

1. Application.

This section covers executions as well as original writs. Harman v. Childress, 11 Tenn. 326, 11 Tenn. 327, 1832 Tenn. LEXIS 54 (1832).

2. Return.

Endorsement on execution “no money made” was not authorized by law and was not a due return. Harman v. Childress, 11 Tenn. 326, 11 Tenn. 327, 1832 Tenn. LEXIS 54 (1832).

Return must be a sufficient one, and this means that he shall not only hand in the writ, but return that he has executed it, or state a sufficient reason why he has not done so. Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).

Inquiry was confined to face of the return with no resort to extrinsic evidence. Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858).

The return “not to be found in my county” would be more perfect and proper, but great strictness is not required when a motion is made for a penalty, and, therefore, the return “not found in my county,” although informal, is sufficient. Hill v. Hinton, 39 Tenn. 124, 1858 Tenn. LEXIS 262 (1858); Kansas City, Fort Scott & Memphis R.R. v. Daughtry, 138 U.S. 298, 11 S. Ct. 306, 34 L. Ed. 963, 1891 U.S. LEXIS 2085 (1891).

3. “Party Aggrieved.”

The “party aggrieved” is the plaintiff in the execution, or someone having the beneficial interest therein, by transfer or assignment from him, either in fact or by operation of law; and the sheriff is not liable to a purchaser of the debtor's land for false return of execution in levying on and selling land where there was personalty. Huffaker v. Greer, 41 Tenn. 160, 1860 Tenn. LEXIS 36 (1860); Whitsett v. Wright, 155 Tenn. 207, 291 S.W. 447, 1926 Tenn. LEXIS 37 (1926).

4. Judgment.

Facts must be set forth in judgment of court in summary proceeding showing jurisdiction of the court. Atkins v. Murphey, 17 Tenn. 264, 1836 Tenn. LEXIS 37 (1836).

Judgment must show that party making motion was the plaintiff in the writ, and that process was returnable to the court entering judgment. Atkins v. Murphey, 17 Tenn. 264, 1836 Tenn. LEXIS 37 (1836).

NOTES TO DECISIONS

1. Proceeding Against Surviving Sureties Without Revivor.

Construing this section together with § 25-3-135, a motion made against all the sureties need not be revived against the representatives or heirs of one who dies pending the suit, but the motion may proceed against the survivors without revivor against the representative or heirs of the deceased surety. Shepherd v. Hamilton County, 55 Tenn. 380, 1874 Tenn. LEXIS 4 (1874).

NOTES TO DECISIONS

1. Certificate of Mailing — Notice to Sheriff.

Where a motion is made against a sheriff for failing to return an execution sent to him from another county, though made at the return term, he is entitled to notice, when he is sought to be held liable on the clerk's certificate that he mailed the process to him, but not, when the process was delivered to him. State v. Faust, 47 Tenn. 109, 1869 Tenn. LEXIS 14 (1869); Reese v. Creson, 60 Tenn. 458, 1872 Tenn. LEXIS 533 (1872); Lane v. Keith, 61 Tenn. 189, 1872 Tenn. LEXIS 358 (1872).

2. Evidence.

3. —Proof of Nonreturn.

A nonreturn must be affirmatively shown. Roberts v. Bostick, 25 Tenn. 232, 1845 Tenn. LEXIS 67 (1845); Gibson v. Martin, 26 Tenn. 127, 1846 Tenn. LEXIS 76 (1846); Childress v. Harrison, 60 Tenn. 410, 1872 Tenn. LEXIS 523 (1873).

The absence of an entry of a return on the execution docket is not sufficient proof of the nonreturn. Gibson v. Martin, 26 Tenn. 127, 1846 Tenn. LEXIS 76 (1846).

A motion for a nonreturn will not be sustained by proof of a false or insufficient return. Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853); Morgan v. Betterton, 109 Tenn. 84, 69 S.W. 969, 1902 Tenn. LEXIS 60 (1902).

4. —Admissions of Sheriff.

In an action brought against a surety on a sheriff's official bond, to which suit the sheriff is not a party, for money collected on an execution, and not paid over, the sheriff's admission, made after the return day of the execution, that he had not paid over to plaintiff the money he had collected on such execution was not admissible, because not a part of the res gestae. Snell v. Allen, 31 Tenn. 208, 1851 Tenn. LEXIS 49 (1851); Trousdale ex rel. McNickol v. Philips, 32 Tenn. 384, 1852 Tenn. LEXIS 88 (1852); Cobb, Welsh & Co. v. Johnson, 34 Tenn. 73, 1854 Tenn. LEXIS 16, 62 Am. Dec. 457 (1854); Wheeler v. State, 56 Tenn. 393, 1872 Tenn. LEXIS 152 (1872); White v. German Nat'l Bank, 56 Tenn. 475, 1872 Tenn. LEXIS 163 (1872).

5. —Sheriff's Bond as Evidence.

The sheriff is liable to the motion independently of his bond. His bond is necessary as evidence against his sureties, if recorded before the trial, though recorded after entry of the motion. Williamson v. Webb, 21 Tenn. 133, 1840 Tenn. LEXIS 46 (1840); Sanford v. Spivey, 1 Shan. 117 (1859).

NOTES TO DECISIONS

1. Application.

This section was inapplicable to clerk and master of chancery court having in his hands money under court order to invest and pay the interest to a certain person for life and to hold principal for remaindermen. Steinberg v. Cox, 24 Tenn. App. 340, 144 S.W.2d 12, 1939 Tenn. App. LEXIS 16 (Tenn. Ct. App. 1939).

2. Motion Against Representative of Clerk.

Motion does not lie against the personal representative of a delinquent officer, because this section does not in terms so provide. Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875).

3. Admissions of Clerk — Admissibility.

Where the proceeding is by motion against a clerk and his sureties, the written admissions of the clerk, not a part of the res gestae, were received in evidence over the objection of the sureties, the court saying that they were competent against the clerk; that there was other evidence tending to show the same facts, and that the sureties were entitled to the writ of error coram nobis to reverse the judgment, if it was founded on a false statement of facts. Young v. Hare, 30 Tenn. 303, 1850 Tenn. LEXIS 119 (1850).

4. Garnishment of Funds.

Funds in the custody of clerks of the courts are funds in custodia legis, in the custody of the law, are not subject to execution at law and cannot therefore be reached by garnishment. Voyles v. State Farm Ins. Co., 743 S.W.2d 165, 1987 Tenn. App. LEXIS 2766 (Tenn. Ct. App. 1987).

NOTES TO DECISIONS

1. Motion.

While the suit is pending, the motion should be made in that suit against the special commissioner, and may be made in the name of all the beneficiaries; but where the separate share due each beneficiary has been ascertained and decreed, each one may make a separate motion. Somerville v. Somerville, 52 Tenn. 160, 1871 Tenn. LEXIS 246 (1871).

2. Illegal Loan by Commissioner.

Where a special commissioner loaned money in violation of order of court, and lost, he and his sureties were liable therefor as the money was figuratively in the commissioner's hands subject to demand, and the statutory penalty of 12½ percent was properly assessed, where payment was not made on demand. Cope v. Cope, 5 Tenn. App. 169, — S.W. —, 1926 Tenn. App. LEXIS 142 (Tenn. Ct. App. 1926).

3. Payment on Notes.

A commissioner to sell land, with authority to take notes payable to himself, has authority to receive payment of the notes taken, when they fall due. Matthews v. Thompson, 49 Tenn. 588, 1871 Tenn. LEXIS 48 (1871).

NOTES TO DECISIONS

1. Indemnity Bonds.

A judgment by motion on an indemnity bond is allowed in favor of the indemnified officer only when a recovery has been had against him by some person other than the defendant in the execution; and if the recovery be by the latter, the officer is left to his common law remedy on the bond. Baker v. Agey, 21 Tenn. 13, 1840 Tenn. LEXIS 15 (1840); Hunter v. Agee, 24 Tenn. 57, 1844 Tenn. LEXIS 18 (1844).

An indemnity bond executed to the officer, not by the plaintiff, but by a stranger, is a valid statutory bond, and the obligor is liable, on motion, to the officer. Jobe v. Sellars, 28 Tenn. 178, 1848 Tenn. LEXIS 68 (1848).

Where an order of sale was issued by a justice in attachment proceedings, the officer was required to sell the property even though title was disputed and plaintiff refused to give an indemnity bond. Grigsby v. Manly, 79 Tenn. 636, 1883 Tenn. LEXIS 118 (1883).

The correctness of the holding in Shaw v. Holmes (1871), 51 Tenn. 692, 1871 Tenn. LEXIS 223, to the effect that an attachment bond operates to protect the officer in the original attachment and to the effect that an officer was not entitled to demand an indemnity bond in an original attachment where title was disputed is questioned. Grigsby v. Manly, 79 Tenn. 636, 1883 Tenn. LEXIS 118 (1883).

2. Against Deputy.

A sheriff may be entitled to judgment by motion against his deputy and sureties. Jarnagin v. Atkinson, 23 Tenn. 470, 1844 Tenn. LEXIS 140 (1844).

The deputy is not liable to his principal for an insufficient return of an execution, if the insufficiency was the fault of the principal himself, as where he wrote the return for the deputy, although the principal may be liable to the plaintiff. Cate v. Howard, 31 Tenn. 15, 1851 Tenn. LEXIS 4 (1851).

Where sheriff proceeded against deputies and their sureties by original suit in chancery court to recover amount for which sheriff had been held liable in action arising out of crash of automobile which was being pursued by deputies, sheriff could not thereafter rely on this section and § 25-3-116. Jones v. Bozeman, 45 Tenn. App. 141, 321 S.W.2d 832, 1958 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1958).

3. Against Clerk.

Although the costs are recovered and collected in the plaintiff's name, he has no interest in them, and the clerk's payment of them to him will not protect the clerk from motion in behalf of the parties entitled to them. Carey v. Campbell, 35 Tenn. 62, 1855 Tenn. LEXIS 14 (1855).

NOTES TO DECISIONS

1. Other Proceedings.

Where sheriff proceeded against deputies and their sureties by original suit in chancery court to recover amount for which sheriff had been held liable in action arising out of crash of automobile which was being pursued by deputies, sheriff could not thereafter rely on this section and § 25-3-114. Jones v. Bozeman, 45 Tenn. App. 141, 321 S.W.2d 832, 1958 Tenn. App. LEXIS 119 (Tenn. Ct. App. 1958).

NOTES TO DECISIONS

1. Requisites of Motion — Omissions.

Motion should set forth the claims upon which it is founded, but where they are set forth in the notice, and the motion is heard upon the notice, and a judgment recites it, this is sufficient, because the objection is merely formal. Howard v. Horner, 30 Tenn. 532, 1851 Tenn. LEXIS 97 (1851).

2. County Warrants.

While county warrants are not negotiable, the holder and owner of a number of them may maintain one motion on the whole number in his own name, and his possession will be prima facie evidence of his ownership. Howard v. Horner, 30 Tenn. 532, 1851 Tenn. LEXIS 97 (1851); Garner v. State, 73 Tenn. 213, 1880 Tenn. LEXIS 112 (1880). See Davidson County v. Olwill, 72 Tenn. 28, 1879 Tenn. LEXIS 3 (1879).

If the warrant be payable to bearer, or to a particular person or order, it is so far assignable as to authorize suit by the holder against the trustee and his sureties if there be failure to pay moneys in his hands in order of presentation of warrants. Garner v. State, 73 Tenn. 213, 1880 Tenn. LEXIS 112 (1880).

When county warrants are regular on their face they establish prima facie the validity of the claims allowed, and authorize payment, but they have no other effect, and an assignee of such warrants takes subject to the risk that they are lawful and properly issued. Bank of Erin v. Houston County, 6 Tenn. App. 638, — S.W.2d —, 1928 Tenn. App. LEXIS 194 (Tenn. Ct. App. 1928).

NOTES TO DECISIONS

1. Application.

This section only applies to moneys received by these officers by virtue of their official positions. Board of Mayor of Brownsville v. Lyle, 2 Shan. 640 (1878).

2. Demand for Damages — Necessity.

Damages need not be demanded in express terms, in the entry of the motion of record, because the damages allowed upon the recovery of a judgment by motion are incident to the judgment. Newman v. Thompson, 25 Tenn. 24, 1845 Tenn. LEXIS 5 (1845).

3. Damages upon Payment After Motion.

Payment by the officer after motion is entered does not relieve him from liability for damages and interest. Newman v. Thompson, 25 Tenn. 24, 1845 Tenn. LEXIS 5 (1845).

4. Liability of Sureties.

The sureties as well as the principal are liable for interest and damages. McLean v. State, 55 Tenn. 22, 1873 Tenn. LEXIS 3 (1873).

Where trustee acts as revenue collector, motion will lie against his sureties under § 67-1-1609 where the death occurs before the motion or notice. Derrick v. State, 71 Tenn. 396, 1879 Tenn. LEXIS 96 (1879).

NOTES TO DECISIONS

1. Partners Not Participating — Extent of Liability.

The penalty and the disbarment inflicted do not apply to a member of a firm who did not participate in the receipt of the money or its wrongful appropriation, as this punishment can only be applicable to the party derelict in duty and personally guilty of wrong. Porter v. Vance, 82 Tenn. 629, 1885 Tenn. LEXIS 4 (1885).

Where one member of a firm of lawyers receipted, in the name of the firm, for a note for collection and, in settlement with the maker of the note, receipted in the name of the firm for the amount of the note, the other member of the firm was held to be liable on motion for the amount of the note so collected, although he knew nothing of the receipt of the note for collection or such settlement. Porter v. Vance, 82 Tenn. 629, 1885 Tenn. LEXIS 4 (1885).

2. Defenses.

Motion against attorney for money not paid over is subject to all defenses that could be made to an ordinary suit, including a setoff. Jones v. Miller, 31 Tenn. 151, 1851 Tenn. LEXIS 37 (1851); Porter v. Vance, 82 Tenn. 629, 1885 Tenn. LEXIS 4 (1885).

NOTES TO DECISIONS

1. Trial and Appeal.

In proceedings to disbar an attorney, he is not entitled to a trial of the issues by a jury, and upon an appeal from a judgment of disbarment the appellate court will try the case de novo, giving no weight to the trial judge's findings of fact. Davis v. State, 92 Tenn. 634, 23 S.W. 59, 1893 Tenn. LEXIS 20 (1893).

2. Time for Disbarment.

An attorney may be disbarred for misappropriation of his client's funds before the client has obtained judgment against him for the amount misappropriated, and before any conviction upon a criminal charge for such misappropriation. Davis v. State, 92 Tenn. 634, 23 S.W. 59, 1893 Tenn. LEXIS 20 (1893).

3. Prerequisites to Reinstatement.

An attorney disbarred for failure to account for money collected by him cannot be reinstated until he had made restitution. Cantor v. Grievance Comms. of Washington County, 189 Tenn. 536, 226 S.W.2d 283, 1949 Tenn. LEXIS 457 (1949).

4. Common Law Jurisdiction of Court.

While this section and title 23, ch. 3, regulate the procedure with reference to attorneys, they do not affect the inherent common law jurisdiction of the court to deal with its officers in a summary way for malpractice or misconduct in their official character. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957).

NOTES TO DECISIONS

1. Effect of Section.

This section did not prevent surety from proceeding in equity for contribution against cosurety. House v. Cocke, 1 Tenn. 296, 1808 Tenn. LEXIS 18 (1808).

2. Finality of Judgment.

The use of the term “judgment” contemplates a final judgment and not a conditional judgment. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

An order of forfeiture of bond which stated that it would become final on a specified future date “unless otherwise ordered” by the court, was a conditional judgment and not a final judgment as contemplated by this section. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

A bonding company or other surety on a bail bond should not be entitled to indemnification from an indemnitor pursuant to an indemnity agreement relating to such bond until some fixed amount has been set for which such surety would be liable to pay, and this event cannot occur until a final judgment of forfeiture has been entered. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

3. Notice.

Notice to principal under subdivision (1) seems not to be required, nor is it a prerequisite to the motion that the principal have notice of the suit against the surety or have had opportunity to give the indemnity provided for by § 25-2-102. Newnan v. Campbell, 8 Tenn. 63, 8 Tenn. 69, 1827 Tenn. LEXIS 9 (1827). See also Williamson v. Leon Burge & Co., 54 Tenn. 117, 1872 Tenn. LEXIS 26 (1872).

4. Surety's Rights Before and After Payment.

Sureties are entitled to judgment by motion against their principal upon rendition of judgment against them as such. If compelled to pay the debt of their principal, they have the right in equity to be subrogated to all the rights of the plaintiff in the property on which a lien was retained as security. Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865); Saylors v. Saylors, 50 Tenn. 525, 1871 Tenn. LEXIS 109 (1871); Watson v. Sutherland, 1 Cooper's Tenn. Ch. 208 (1873).

5. Motion for Partial Payment.

Surety could sue principal for partial payment of the debt, although the payment was made for the purpose of reducing the debt within the justice's jurisdiction, so that the creditor might recover judgment thereon against the principal before a justice. Hall v. Hall, 29 Tenn. 352, 1849 Tenn. LEXIS 83 (1849).

6. Judgment Over Before Payment.

The surety may confess judgment in favor of the creditor, and thereupon move for judgment against the principal. Newnan v. Campbell, 8 Tenn. 63, 8 Tenn. 69, 1827 Tenn. LEXIS 9 (1827).

The surety is entitled to judgment by motion as soon as the judgment is rendered against him, and before payment. Reeves v. Pulliam, 66 Tenn. 119, 1874 Tenn. LEXIS 91 (1874). See Nashville Bank v. Campbell, 15 Tenn. 353, 1835 Tenn. LEXIS 11 (1835).

7. Estate of Surety Making Motion Before Payment.

Where judgment is obtained against a decedent's estate on decedent's contract of surety for one of his heirs, who also became administrator of the estate, judgment may be rendered against such heir or administrator, in favor of the estate, in settlement thereof, though the judgment against the estate has not yet been paid by the estate. Boring v. Jobe, 53 S.W. 763, 1899 Tenn. Ch. App. LEXIS 79 (1899).

8. Limitations.

Though the surety is entitled to judgment by motion as soon as the judgment is rendered against him, and before payment, the statute of limitations runs only from the date of the payment. Reeves v. Pulliam, 66 Tenn. 119, 1874 Tenn. LEXIS 91 (1874). See Nashville Bank v. Campbell, 15 Tenn. 353, 1835 Tenn. LEXIS 11 (1835).

Where the payee of a note endorses it to a third person before the death of the maker, and after the death and after the note is barred by limitations in favor of his estate, the endorsee sues the endorser upon his endorsement and recovers judgment against him, which he subsequently pays, and within two years after such payment, but more than two years and six months after the rendition of the judgment files his petition to assert his claim against the estate for reimbursement, his claim is not barred by the statute of limitations in favor of estates of decedents. Such statute did not begin to run at the rendition of the judgment, but only from payment. Vanderville v. Persons, 3 Shan. 415 (1875). See Maxey v. Carter, 18 Tenn. 521, 1837 Tenn. LEXIS 76 (1837).

9. Costs of Defense.

Where a surety neglected to protect itself by the simple and routine expedient of requiring a bond application containing an indemnity clause, it must bear the expense of its attorney fees in defending an action against the principal and is not entitled to any indemnification from the principal even though the principal had refused to provide the surety with a defense and had undertaken its own defense. Shankle-Clairday, Inc. v. Crow, 414 F. Supp. 160, 1976 U.S. Dist. LEXIS 17263 (M.D. Tenn. 1976).

10. Settlement of Principal's Debt.

Sections 25-3-122 — 25-3-143 applicable to suretyship have no relevance where a contract of guarantee authorizes a compromise settlement of the principal's debt, and expressly retains the liability of the guarantor for the balance. Such a contract permits the extinguishment of the principal debt and although, to the extent of payment, the guarantor stands in the shoes of the creditor, there is nothing — no cause of action — to which he can be substituted, because the right of subrogation equitable or by statute has been contracted away. Hickory Springs Mfg. Co. v. Evans, 541 S.W.2d 97, 1976 Tenn. LEXIS 526 (Tenn. 1976).

11. Nature of Motion.

Although this section does not provide for a summary proceeding by which sureties may proceed against their principals, a motion made pursuant to this section is an independent and original action. Major v. General Motors Corp., 742 F. Supp. 1357, 1990 U.S. Dist. LEXIS 11064 (M.D. Tenn. 1990).

12. Action in Bankruptcy Court.

Ordinarily an action would be brought in the court in which judgment against the surety was rendered, however, an action was properly commenced in the bankruptcy court in the first instance where the surety also sought determination of the dischargeability of the liability. Ohio Cas. Ins. Co. v. Hryhorchuk (In re Hryhorchuk), 211 B.R. 647, 1997 Bankr. LEXIS 1968 (Bankr. W.D. Tenn. 1997).

NOTES TO DECISIONS

1. Showing Type of Endorser in Judgment.

The judgment by motion in favor of an endorser will be void, if it fails to show that the plaintiff was an accommodation endorser. Allen v. Wood, 38 Tenn. 436, 1858 Tenn. LEXIS 206 (1858); Copass v. Wheelock, 69 Tenn. 381, 1878 Tenn. LEXIS 104 (1878).

NOTES TO DECISIONS

1. Cumulative Nature of Remedy.

The remedy by motion does not deprive a cosurety of relief by way of bill in equity against personal representative and heirs of cosurety to sell realty for debts. Reeves v. Pulliam, 68 Tenn. 153, 1877 Tenn. LEXIS 9 (1877); Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

The remedy by motion is cumulative and does not deprive the cosurety of relief in equity. Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

2. Finality of Judgment.

The use of the term “judgment” contemplates a final judgment and not a conditional judgment. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

An order of forfeiture of bond which stated that it would become final on a specified future date “unless otherwise ordered” by the court, was a conditional judgment and not a final judgment as contemplated by this section. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

A bonding company or other surety on a bail bond should not be entitled to indemnification from an indemnitor pursuant to an indemnity agreement relating to such bond until some fixed amount has been set for which such surety would be liable to pay, and this event cannot occur until a final judgment of forfeiture has been entered. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

3. Proper Matters of Contribution.

Attorney fees incurred and paid by a surety, with the consent of his cosureties, in making a prudent defense for the common benefit, constitute part of the joint liability, and are a proper matter for contribution. Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889).

Costs adjudged against the cosureties jointly, in litigation touching their joint obligation, and paid by one of the sureties, and other necessary and proper expenses, are proper matters for contribution. Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889).

4. Overpayment as Prerequisite to Right to Contribution.

Surety was not entitled to relief under this section where suit was merely pending against surety on his obligation under a bond and no payment had been made. Dibbrell v. Mitchell, 2 Shan. 591 (1877).

A cosurety who has paid less than his ratable share of the joint liability cannot enforce contribution, even against cosureties who have paid nothing. Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889).

5. Procedure in Enforcing Contribution.

A defendant cosurety, who has overpaid his share, cannot recover the excess from his cosureties, upon answer merely, without cross-bill. Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889); Lewis v. Glass, 92 Tenn. 147, 20 S.W. 571, 1892 Tenn. LEXIS 59 (1892); Griffith v. Security Home Bldg. & Loan Ass'n, 100 Tenn. 410, 45 S.W. 670, 1897 Tenn. LEXIS 130 (1897). See Cloud v. Hamilton & Sitler, 11 Tenn. 80, 11 Tenn. 81, 1832 Tenn. LEXIS 22 (1832); Bussey v. Gant, 29 Tenn. 238, 1849 Tenn. LEXIS 56 (1849).

6. Cosurety Signing as Principal.

A judgment by motion obtained by one surety on a note against another surety as principal, his character of surety not appearing on the note itself, is voidable and may be enjoined, but equity will relieve only upon condition that the party do equity, by paying his moiety of the liability. Creed v. Scruggs, 48 Tenn. 590, 1870 Tenn. LEXIS 118 (1870). See Estis v. Patton, 11 Tenn. 381, 11 Tenn. 382, 1832 Tenn. LEXIS 67 (1832); Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876).

Where two sign as principals, and another as surety, and the one signing as principal was in fact surety, the burden of proof is upon the one signing as principal to show that he was in fact a surety, and if he had by his actions induced the one signing as surety to think that the other two were joint principals, he would be repelled from a court of equity if he sought contribution from the one signing as surety, whatever the fact might be. Coleman v. Norman, 57 Tenn. 590, 1873 Tenn. LEXIS 269 (1873).

7. Note Barred as to Principal — Surety's Remedy.

Although an administrator of the principal may defeat recovery on a note, by a plea of the statute of limitations, that does not relieve the sureties of the intestate of liability, and the surety may have a remedy against the principal's administrator. Reeves v. Pulliam, 68 Tenn. 153, 1877 Tenn. LEXIS 9 (1877).

8. Cosureties Not Included in Judgment — Motion Against.

A cosurety against whom judgment has been rendered may have judgment, by motion, against the cosureties to the instrument, whether included in the judgment or not. Hickerson v. Price, 47 Tenn. 151, 1869 Tenn. LEXIS 24 (1869); Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

9. Amount Recoverable from Each Cosurety.

If one surety is made to pay the whole debt, or more than his ratable share, he can, by motion, recover from each of the other sureties only his aliquot proportion of the liability. He cannot, by motion, recover more than this from the solvent cosureties, on account of the insolvency of the rest, whose proportion he has had to pay; but, by bill in equity, he can compel the solvent cosureties to contribute to the payment of the entire amount so paid, as the rate of contribution in such suit is determined according to the number of solvent sureties. Riley v. Rhea, 73 Tenn. 115, 1880 Tenn. LEXIS 93 (1880); Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889). See Bittick v. McEwen, 54 Tenn. 1, 1871 Tenn. LEXIS 408 (1871); Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

10. Partial Payments by Several Cosureties — Contribution.

Where more than one of the sureties have made payments on the joint indebtedness, all the payments must be added together, and the aggregate divided equally among the sureties; and where a bill for contribution among the solvent sureties is filed in equity, each must be charged with his share thus ascertained, and credited with the entire amount of his payments; and he must pay the balance thus found against him. If he has paid more than his ratable part, he will recover same from the other parties. Gross v. Davis, 87 Tenn. 226, 11 S.W. 92, 1888 Tenn. LEXIS 56, 10 Am. St. Rep. 635 (1889).

11. Arrangement Between Cosureties — Effect.

Where one surety has paid the entire debt, and then collected from one cosurety more than his share, and afterwards filed a bill against another cosurety for his proportion, the latter cannot, after answer filed, by an arrangement made with the former cosurety, to which arrangement the complainant was no party, pay such cosurety the overplus due him, and claim a credit for such payment as against the complainant. Preston v. Campbell's Ex'rs, 4 Tenn. 20, 1816 Tenn. LEXIS 6 (1816).

NOTES TO DECISIONS

1. Remedies as to Sureties.

In the case of sureties, motions lie both for and against personal representatives of deceased parties. Reeves v. Pulliam, 68 Tenn. 153, 1877 Tenn. LEXIS 9 (1877); Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882).

2. Remedies as to Deceased Officials.

A motion did not lie against the personal representative of a deceased clerk, and the sureties upon the official bond of the clerk, because the remedy under this section applies exclusively to the reciprocal remedies of sureties as against each other. Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875).

Under § 67-1-1609 a motion for the official default of county trustee as revenue collector will lie by the state even though the trustee died before the motion is made or notice is given. Derrick v. State, 71 Tenn. 396, 1879 Tenn. LEXIS 96 (1879).

NOTES TO DECISIONS

1. Courts — Jurisdiction.

The motion by a surety against his principal is an independent action, and may be made in the court in which the judgment was rendered, or also in any court having jurisdiction of the amount, or any court of the county in which the defendant resides. Anderson v. Binford, 61 Tenn. 310, 1872 Tenn. LEXIS 377 (1872).

2. Jurisdiction of Amount.

The claim of sureties against their principal for money paid by them is founded only on an implied assumpsit for money paid for the principal's use, and a motion based thereon must be made before a tribunal having jurisdiction of the amount. Graham v. Green, 5 Tenn. 187, 1817 Tenn. LEXIS 86 (1817).

3. Appellate Jurisdiction.

The appellate court has no original jurisdiction of a motion by one cosurety for judgment against another, or of a motion by surety for judgment against his principal. Ward v. Thomas, 42 Tenn. 565, 1865 Tenn. LEXIS 103 (1865).

4. Construction.

The use of the term “judgment” contemplates a final judgment and not a conditional judgment. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

NOTES TO DECISIONS

1. Construction.

The use of the term “judgment” contemplates a final judgment and not a conditional judgment. State v. Taylor, 675 S.W.2d 721, 1984 Tenn. Crim. App. LEXIS 2466 (Tenn. Crim. App. 1984).

NOTES TO DECISIONS

1. Prerequisites to Jurisdiction.

A justice (now general sessions judge) has no jurisdiction of a motion by a surety against his principal, unless such suretyship appears on the face of the instrument or in the proceedings on which the judgment was rendered or payment made, because a justice has no jury to ascertain the fact of suretyship, and the requirement of a jury to ascertain that fact excludes the jurisdiction of a justice where the suretyship does not appear as required by the statute. Vanbibber v. Vanbibber, 29 Tenn. 53, 1849 Tenn. LEXIS 7 (1849); Cannon v. Wood, 34 Tenn. 177, 1854 Tenn. LEXIS 29 (1854).

2. Burden of Proving Suretyship.

Where the fact of suretyship does not appear upon the instrument, that fact must be established by the proof, and the burden is upon the party setting it up. England v. McKamey, 36 Tenn. 75, 1856 Tenn. LEXIS 57 (1856).

3. Parol Agreement as to Ostensible Principal's Liability — Enforcement.

A parol contract, whereby parties agree that the ostensible principal shall be liable only as a surety on a note, may be proved and enforced in equity. Blackmore v. Granbery, 98 Tenn. 277, 39 S.W. 229, 1896 Tenn. LEXIS 222 (1897).

NOTES TO DECISIONS

1. Costs.

For his costs of a reasonable and bona fide defense, incurred by a surety or accommodation endorser in resisting, in good faith and upon reasonable grounds, a recovery against him, such surety or endorser is entitled to indemnity, and may enforce it against his principal; but he cannot exact reimbursement for costs where he litigated recklessly and without authority, in a clearly hopeless case. Holt v. Winstead, 45 Tenn. 568, 1868 Tenn. LEXIS 48 (1868); Overton v. Hardin, 46 Tenn. 375, 1869 Tenn. LEXIS 70 (1869).

Where a surety neglected to protect itself by the simple and routine expedient of requiring a bond application containing an indemnity clause, it must bear the expense of its attorney fees in defending an action against the principal and is not entitled to any indemnification from the principal even though the principal had refused to provide the surety with a defense and had undertaken its own defense. Shankle-Clairday, Inc. v. Crow, 414 F. Supp. 160, 1976 U.S. Dist. LEXIS 17263 (M.D. Tenn. 1976).

NOTES TO DECISIONS

1. Motions Covered.

Judgment by motion against a revenue collector, and part of his living sureties, is a nullity. Fry v. Britton, 49 Tenn. 606, 1871 Tenn. LEXIS 50 (1871).

In view of the language employed and the provisions of other sections in this chapter, this section and § 25-3-136, are construed to refer to judgments by motion against delinquent officials, and to have no relation to a motion by a defendant in an attachment suit. Lawing v. Schaufflu, 162 Tenn. 79, 34 S.W.2d 1055, 1930 Tenn. LEXIS 65, 85 A.L.R. 633 (1931).

2. Persons Entitled to Make Motion.

Party aggrieved includes the state, as well as individuals. Hand v. State, 24 Tenn. 515, 1845 Tenn. LEXIS 113 (1845).

The motion must be in the name of the party legally entitled. The assignee of a judgment cannot move in his own name against an officer for nonreturn, but must move in the name of his assignor, the judgment creditor, in whom the legal title is. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845). But see Hopson v. Hoge & Lester, 16 Tenn. 153, 1835 Tenn. LEXIS 63 (1835); Cleveland v. Martin, 39 Tenn. 128, 1858 Tenn. LEXIS 263 (Tenn. Dec. 1858).

3. Judgment Against Only Part of Those Liable.

Judgment on motion against only part of those liable, while erroneous, is not void when attacked only collaterally. Hall v. Tompkins, 28 Tenn. 592, 1848 Tenn. LEXIS 126 (1848); Shaw v. Patterson, 2 Cooper's Tenn. Ch. 171 (1874).

4. Death of Principal or Part of Sureties — Effect.

This statute gives the motion against the persons in default and all persons in existence liable with him, that is, against the principal and all living sureties. If some sureties be dead, the motion may be made against the principal and the surviving sureties, but if the principal be dead, the motion cannot be made against the sureties alone unless, of course, some statute expressly so provides. Burroughs v. Goodall, 39 Tenn. 29, 1858 Tenn. LEXIS 246 (1858); Derrick v. State, 71 Tenn. 396, 1879 Tenn. LEXIS 96 (1879). See also, Houston v. Dougherty, 23 Tenn. 505, 1844 Tenn. LEXIS 152 (1844).

Prior to the enactment of § 25-3-106 the remedy by motion did not extend to the personal representative of a deceased officer or to his surety, and could not be maintained against either, but under § 25-3-106 where the officer or part of his sureties die during the pendency of the motion it may be revived against the personal representative of such officer or surety. Burroughs v. Goodall, 39 Tenn. 29, 1858 Tenn. LEXIS 246 (1858).

Motion will lie against the sureties for the official default of the county trustee under § 67-1-1609 though he be dead. Derrick v. State, 71 Tenn. 396, 1879 Tenn. LEXIS 96 (1879).

If one of the sureties is dead at the time the motion is entered it should be against those living or in existence at the time. Shepherd v. Hamilton County, 55 Tenn. 380, 1874 Tenn. LEXIS 4 (1874).

A motion was not allowable against the administrator of a deceased clerk and the sureties on his official bond. Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875).

5. Showing of Death of Sureties — Necessity.

If some of the sureties be dead, the record must show that fact, in order to sustain the judgment against the rest. Shepherd v. Hamilton County, 55 Tenn. 380, 1874 Tenn. LEXIS 4 (1874). But see Hearn v. Ewin, Pendleton & Co., 43 Tenn. 399, 1866 Tenn. LEXIS 67 (1866), holding that, if the omission was an oversight without culpability, upon reversal, the case will be remanded for further proceedings.

NOTES TO DECISIONS

1. Common Law Bond — Status Under Section.

By this section, a good common law bond is placed on the same footing as if taken precisely according to the statute. Lay v. State, 37 Tenn. 604, 1858 Tenn. LEXIS 73 (1858); McLean v. State, 55 Tenn. 22, 1873 Tenn. LEXIS 3 (1873).

2. Personal Representative — When Not Covered.

Motion given against an officer and his sureties does not include the personal representative of the officer or of a surety. State v. Deberry, 28 Tenn. 605, 1848 Tenn. LEXIS 129 (1849); Young v. Hare, 30 Tenn. 303, 1850 Tenn. LEXIS 119 (1850); Park v. Walker, 34 Tenn. 503, 1855 Tenn. LEXIS 89 (1855); Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875).

3. Several Claims — One Motion for Collection.

A motion against a constable for failure to pay over moneys collected may be for several distinct claims, and it is no objection to the validity of the judgment that it embraces the moneys collected on various claims. Sanford v. Spivey, 1 Shan. 117 (1859).

4. Judgment.

A joint judgment shall be rendered against the principal and sureties, and not separate judgments for different amounts against them. McLean v. State, 55 Tenn. 22, 1873 Tenn. LEXIS 3 (1873).

Judgments by motion must show every fact necessary to give the court jurisdiction, otherwise they are void. Galbraith v. Chestnutt, 2 Shan. 99 (1876).

5. —Surety Omitted as Party — Effect.

Where, in a motion in favor of the state against the sheriff and his sureties, the name of one of the sheriff's sureties is by inadvertence, omitted, but judgment is properly rendered against all the sureties, the judgment is valid. Jones v. Henderson, 1 Shan. 35 (1850).

6. Remedies of Sureties Under Judgment.

If the judgment was founded upon a false state of facts, however conclusive it might be as against the principal, the sureties are not without remedy, as they will be entitled to a writ of error coram nobis to reverse it. Young v. Hare, 30 Tenn. 303, 1850 Tenn. LEXIS 119 (1850).

A surety against whom judgment has been rendered for the whole debt may file a bill against the personal representative and heirs of a cosurety, for contribution; and, upon an averment of the exhaustion of personal assets, he may sell land for the payment of the recovery. Stephens v. Meek, 74 Tenn. 226, 1880 Tenn. LEXIS 237 (1880).

NOTES TO DECISIONS

1. Motions Covered.

This section applies to all motions not otherwise provided for, and is not confined to motions given by this chapter. Williamson v. Leon Burge & Co., 54 Tenn. 117, 1872 Tenn. LEXIS 26 (1872).

2. Notice.

This section means that notice must be given unless the case falls within one of the classes specified as cases in which notice is dispensed with. Williamson v. Leon Burge & Co., 54 Tenn. 117, 1872 Tenn. LEXIS 26 (1872).

Where judgment by motion has been taken against the sheriff and his sureties for the nonreturn of an execution by his deputy, notice is not required to be given by the sheriff to such deputy, in the motion of the sheriff for judgment over against the deputy sheriff and his sureties. Shaw v. Patterson, 2 Cooper's Tenn. Ch. 171 (1874).

3. Waiver of Want of Notice.

If the defendant appear without notice, he cannot defeat the proceeding on the ground that notice was not given. Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853).

4. Judgment.

A judgment by motion in favor of a surety, showing affirmatively that it was not taken within six months after judgment against the surety, but not showing whether it was taken within six months after the surety paid the judgment, nor whether it was a case in which notice was given or dispensed with, is void and invalid. Galbraith v. Chestnutt, 2 Shan. 99 (1876).

Decisions Under Prior Law

1. Nature of Notice — Commencement of Suit.

The motion itself, and not the service of notice, is the commencement of the suit. The notice is not judicial process, but only the individual act of the party aggrieved, required by the statute for the benefit of the party to be moved against and sought to be made liable. Cheatham v. Howell, 14 Tenn. 310, 14 Tenn. 311, 1834 Tenn. LEXIS 81 (1834); Gwin v. Vanzant, 15 Tenn. 142, 15 Tenn. 143, 1834 Tenn. LEXIS 28 (1834); Broughton v. Allen, 25 Tenn. 96, 1845 Tenn. LEXIS 30 (1845).

2. Persons Entitled to Notice.

The notice is for the principal, and the sureties are not entitled to notice. Baxter v. Marsh, 9 Tenn. 459, 9 Tenn. 460, 1830 Tenn. LEXIS 48 (1830); Hopson v. Hoge & Lester, 16 Tenn. 153, 1835 Tenn. LEXIS 63 (1835); Young v. Hare, 30 Tenn. 303, 1850 Tenn. LEXIS 119 (1850); Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872); Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875).

If notice cannot be served on the principal, it must be served on the sureties, in order to hold them liable on the motion. Stuart v. McCuistion, 48 Tenn. 427, 1870 Tenn. LEXIS 82 (1870); Williamson v. Leon Burge & Co., 54 Tenn. 117, 1872 Tenn. LEXIS 26 (1872).

Where sheriff's term of office expired before date for return of execution, judgment by motion against sheriff for nonreturn of execution was void as to his sureties where there was no personal service or its equivalent on them. Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872).

3. Service and Proof of Notice.

The notice is a mere private paper, and may be served by a private individual, but in that case the service must be proved. If served by the sheriff, his return is evidence of the fact of service. Cheatham v. Howell, 14 Tenn. 310, 14 Tenn. 311, 1834 Tenn. LEXIS 81 (1834).

4. Day for Making Motion Not Specified — Effect.

A notice of motion stating that judgment will be moved for at a specified term of the court, but without designating the day on which the motion will be made, is sufficient. State v. Allison, 55 Tenn. 1, 1872 Tenn. LEXIS 111 (1872).

5. Motion Not Made at Time Specified.

If a certain day is specified in the notice, the motion must be made on that day, unless waived by appearance of the defendant. Cheatham v. Howell, 14 Tenn. 310, 14 Tenn. 311, 1834 Tenn. LEXIS 81 (1834); Gwin v. Vanzant, 15 Tenn. 142, 15 Tenn. 143, 1834 Tenn. LEXIS 28 (1834); State v. Allison, 55 Tenn. 1, 1872 Tenn. LEXIS 111 (1872).

If the term specified in the notice is not held, the motion cannot be made at the next term, unless there is a new notice for that term. Thomison v. Hugh Douglass & Co., 62 Tenn. 74, 1873 Tenn. LEXIS 143 (1873).

6. Waiver of Notice.

By defendant's appearance and continuance of the cause, at the first term by consent and at the next term on his own affidavit, he waived his right to notice of the motion, and his defense thereafter set up in his plea of want of notice as a matter of abatement, came too late. State v. Faust, 47 Tenn. 109, 1869 Tenn. LEXIS 14 (1869).

7. —Effect as to New Motion or Amendment.

Where there is a motion without notice, the supreme court will not correct the judgment void for want of proper recitals, nor remand the cause for an amendment equivalent to a new suit. If appearance of the defendant by counsel in the lower and supreme courts amount to waiver of notice, it creates no obligation to appear again in the lower court and waive notice of a new motion or of an amendment of the original motion equal to commencement of a new suit. Stuart v. McCuistion, 48 Tenn. 427, 1870 Tenn. LEXIS 82 (1870).

8. Showing Ground of Motion.

Where the notice was of a motion for nonreturn of an execution against James Lowry (the principal), and the execution was against James and Almon Lowry (the principal and stayor), the notice was held to be sufficient. McMullen v. Goodman, 23 Tenn. 239, 1843 Tenn. LEXIS 66 (1843).

The record must show distinctly the particular ground upon which the motion is made, and the judgment, to be valid, must be rested upon that ground. Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853); Johnson v. Bruster, 61 Tenn. 99, 1872 Tenn. LEXIS 346 (1872).

The notice must show for what default the motion will be made. Watkins v. Barnes, 33 Tenn. 201, 1853 Tenn. LEXIS 30 (1853).

Judgment by motion cannot refer to the notice already spread upon the minutes for the proper recitals, but the motion itself must show the ground on which it is made, or upon which a judgment is sought. Johnson v. Bruster, 61 Tenn. 99, 1872 Tenn. LEXIS 346 (1872).

9. Showing of Notice.

Where the judgment, on its face, shows a state of facts making notice necessary, it must appear, either by the recitals of the judgment or by the record of the summary proceeding, that notice was given to defendants as required. Copass v. Wheelock, 69 Tenn. 381, 1878 Tenn. LEXIS 104 (1878).

NOTES TO DECISIONS

1. State's Motion Against Clerk of Court.

A motion by state against the clerk of a criminal court and his sureties for failure to pay over state revenue may be made in the circuit court of the county. Donelson v. State, 71 Tenn. 692, 1879 Tenn. LEXIS 132 (1879).

2. Surety's Motion.

The jurisdiction to take judgment over by motion in favor of a surety against whom judgment has been rendered is confined to the court in which the judgment was rendered, or to a court of the county in which the defendant resides. Hall v. Tompkins, 28 Tenn. 592, 1848 Tenn. LEXIS 126 (1848); Anderson v. Binford, 61 Tenn. 310, 1872 Tenn. LEXIS 377 (1872).

NOTES TO DECISIONS

1. Significance of Amount Sought.

The circuit court and justices (now general sessions judges) have concurrent jurisdiction of motions against officers for failing to pay over moneys collected by them, and for the nonreturn of executions; but justices are confined to amounts within their jurisdiction, while the circuit court is not limited as to amount, however small it may be. Drewry v. Vaden, 39 Tenn. 312, 1859 Tenn. LEXIS 216 (1859).

NOTES TO DECISIONS

1. Computation of Damages.

On motion against an officer for an insufficient return, the damages will be computed on the amount of the execution, after adding the interest thereon to the date of the judgment by motion. Dunnaway v. Collier, 49 Tenn. 10, 1870 Tenn. LEXIS 181 (1870); Young v. Donaldson, 49 Tenn. 52, 1870 Tenn. LEXIS 189 (1870); Bank of Tennessee v. Cannon, 49 Tenn. 428, 1871 Tenn. LEXIS 28 (1871).

2. Suit on Officer's Bond — Damages.

In a suit on the officer's bond, damages of 12½ percent are recoverable in the same way as when the proceeding is by motion. Rader v. Davis, 73 Tenn. 536, 1880 Tenn. LEXIS 177 (1880).

NOTES TO DECISIONS

1. Liability on Motion and in Regular Action.

If defendant is liable on motion, he is a fortiori liable in regular action. Bosley v. Smith, 22 Tenn. 406, 1842 Tenn. LEXIS 111 (1842).

NOTES TO DECISIONS

1. Effect of Section.

Before the enactment of this section, where execution was not issued within a year and a day after the date of the judgment, the judgment creditor was compelled, in order to obtain it, to bring the defendant into court by scire facias to show cause why the judgment should not be revived and execution issued against him; but, by this section, this practice was abolished, and it is not necessary to revive judgments by scire facias in such cases, but executions may issue as a matter of course until 10 years after the rendition of the judgments. Gregory v. Chadwell, 43 Tenn. 390, 1866 Tenn. LEXIS 65 (1866); Lain v. Lain, 62 Tenn. 30, 1873 Tenn. LEXIS 131 (1873).

The remedy given by this section did not interfere with the preexisting remedy of revivor of the judgment. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

Trial court erred in its order extending the judgment in not giving the proper retroactive effect to the nunc pro tunc provision of its final judgment because the original final judgment successfully was renewed for an additional ten years; therefore, the Tenn. R. Civ. P. 69.04 motion was filed timely, and the final judgment had been renewed. Cook v. Alley, 419 S.W.3d 256, 2013 Tenn. App. LEXIS 227 (Tenn. Ct. App. Apr. 4, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 730 (Tenn. Sept. 10, 2013).

2. Nature and Definition.

A scire facias to revive a judgment is treated as a new suit, and not merely a continuation of the former suit. It is a judicial writ, founded on some matter of record, as a recognizance or judgment, on which it lies to obtain execution, or for other purposes; and, because the defendant may plead thereto, it is considered in law a new action. Swancy v. Scott, 28 Tenn. 327, 1848 Tenn. LEXIS 86 (1848); Gregory v. Chadwell, 43 Tenn. 390, 1866 Tenn. LEXIS 65 (1866); Bilbo v. Allen, 51 Tenn. 31, 1871 Tenn. LEXIS 131 (1871); Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875); McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884). See Bank of State v. Vance's Adm'r, 17 Tenn. 471, 1836 Tenn. LEXIS 88 (1836).

A scire facias to revive a judgment is so far in the nature of a new action, that any defense may be made which will prevent the revivor. McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

3. Mode of Revival.

A judgment cannot be revived against the defendant upon the motion of the plaintiff alone, for it is in the nature of a new suit to recover upon the former judgment, and the revivor should be upon scire facias or an appearance and waiver of the writ. The scire facias should be to the defendant if living, or, if he be dead, to his representatives or heirs. Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875); Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

4. Lost Judgment.

Scire facias will lie to revive a lost judgment more than 10 years after its rendition. Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875); Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

5. Prerequisites to Issuance of Scire Facias.

After the lapse of 10 years from the rendition of the judgment, the scire facias to revive the same can only issue by order of the court, made on motion, and supported by affidavit that the judgment remains in force and unsatisfied; and after the lapse of 20 years the defendant must have notice of the motion and affidavit, and the court may exercise its discretion, and allow or refuse the motion, as may seem proper in the case. Keith v. Metcalf, 32 Tenn. 74, 1852 Tenn. LEXIS 17 (1852).

6. Affidavit.

It is not necessary to set out any payments made and balance due in the affidavit for scire facias. Executors of Carson v. Richardson, 4 Tenn. 231, 1817 Tenn. LEXIS 17 (1817).

A proceeding by scire facias to revive a judgment after 20 years requires an affidavit, but if none was filed, and no objection was taken below for the failure to file the affidavit, the defendant will not be heard to make the objection in the appellate court. Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875).

It is essential that the affidavit for suing out a writ of scire facias to revive a judgment after 10 years should state the recovery of the judgment, the lapse of over 10 years from its rendition, and that it remains in full force and unsatisfied. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

In affidavit for scire facias after 10 years, it is not essential to aver that execution had not been sued out within the year. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

7. Defects in Affidavit — Waiver.

A scire facias to revive will not be defeated, because founded upon a defective affidavit, if not properly objected to in the court below. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

8. Amendment of Scire Facias.

Scire facias may be amended so as to conform to the record of the original judgment sought to be revived, so as to obviate a variance between it and the proof. Bryant v. Smith, 47 Tenn. 113, 1869 Tenn. LEXIS 15 (1869); Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

9. Pleas Going Behind Judgment.

To a scire facias to revive a judgment, a plea as to the relation of the defendants in the judgment and the facts before the judgment are not admissible. Deberry v. Adams, 17 Tenn. 52, 1836 Tenn. LEXIS 14 (1836).

To a scire facias to revive, the defendant cannot plead that he was not served with process in the original suit, for his relief against this would be in chancery. Bell v. Williams, 36 Tenn. 196, 1856 Tenn. LEXIS 79 (1856).

In reviving a judgment of a court of general jurisdiction, where the record shows service of summons and trial by jury, the fact that no plea was filed would not render the judgment void. If the judgment is not void, but merely erroneous, it cannot be attacked collaterally in the proceeding to revive the judgment. Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875).

10. Limitations as Bar to Revival.

The scire facias to revive a judgment may be sued out at any time, though the 10-year statute of limitations is a complete bar to the revival of the judgment, if pleaded, unless the judgment debtor has promised to pay it, within the limitation. Lain v. Lain, 62 Tenn. 30, 1873 Tenn. LEXIS 131 (1873); Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875); Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881); Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197, 1895 Tenn. LEXIS 98 (1895).

A scire facias will lie to revive a judgment at any time before it is 10 years old. Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197, 1895 Tenn. LEXIS 98 (1895).

11. Entry of Revivor — Requisites.

Proper entry of revivor of a judgment in favor of the plaintiff, upon a scire facias to revive, is that the original judgment stand revived, and that the plaintiff have execution against the defendant therefor, with interest and costs of suit, and the costs of the scire facias to revive, subject to any credit for any payments found to have been made, with the date of the same; and it is not proper to render a new judgment for the old judgment with the accrued interest. Lain v. Lain, 62 Tenn. 30, 1873 Tenn. LEXIS 131 (1873); Taylor v. Miller, 70 Tenn. 153, 1879 Tenn. LEXIS 146 (1879); Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197, 1895 Tenn. LEXIS 98 (1895).

The judgment of revivor should set forth definitely the date and amount of the judgment revived, and be otherwise so definite as to render it, in itself, valid and complete. Fogg v. Gibbs, 67 Tenn. 464, 1875 Tenn. LEXIS 67 (1875).

Upon the revivor of a judgment of a lower court by scire facias, the appellate court will award execution without remanding the cause. Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197, 1895 Tenn. LEXIS 98 (1895).

12. Covenants Not to Sue.

Since covenant not to sue did not extinguish the cause of action and was not a defense to a suit on such cause of action but was rather a covenant not to levy execution, the covenantor-plaintiff could obtain revival of her judgment against the covenantee debtors. Kreutzmann v. Bauman, 609 S.W.2d 736, 1980 Tenn. App. LEXIS 389 (Tenn. Ct. App. 1980).

NOTES TO DECISIONS

1. Death of Defendant.

The death of one or more defendants in a judgment interposes no obstacle to the issuance of an execution without reviving the judgment. The execution should issue in usual form against all the defendants, but it would be proper to suggest the death of the deceased defendant. It is the duty of the officer to proceed to collect the debt from the surviving defendants, and, if necessary, to levy upon their property, though they may be sureties or stayors. Cheatham v. Brien, 40 Tenn. 552, 1859 Tenn. LEXIS 162 (1859); H.S. Dickinson & Son v. Bowers, 66 Tenn. 307, 1874 Tenn. LEXIS 131 (1874).

Upon the death of the judgment debtor, the judgment creditor may revive the judgment against the personal representative of the decedent, by scire facias, and an appellate court may issue the writ. McIntosh v. Paul, 74 Tenn. 45, 1880 Tenn. LEXIS 209 (1880).

2. Death of Plaintiff.

While this section, in terms, is applicable to cases of revivor against defendants, when coupled with § 20-1-108, it authorizes a revivor of a judgment against one of several joint defendants, by the personal representative of a deceased plaintiff. Gregory v. Chadwell, 43 Tenn. 390, 1866 Tenn. LEXIS 65 (1866).

Where the plaintiff dies after the judgment and before execution, it seems to be necessary to revive by scire facias, but if the execution had issued before his death, it may be levied and the property sold, as if his death had not occurred, or if execution be tested before his death, though issued afterwards, the same result follows. Gregory v. Chadwell, 43 Tenn. 390, 1866 Tenn. LEXIS 65 (1866).

NOTES TO DECISIONS

1. Sufficiency of Averments.

A scire facias between the original parties to revive a judgment held to be sufficient as containing all the material averments. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

2. Issuance by Successor.

Sufficient scire facias by a justice of the peace (now general sessions judge), upon a judgment rendered by his predecessor in office, more than 13 years before, against the defendant in the judgment and his stayor, with a small payment made on the judgment. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881).

3. Powers of Circuit Court.

There is no authority under our practice for suing out an original scire facias in the circuit court to revive a judgment before a justice of the peace (now general sessions judge), not even in a case appealed to the circuit court, for the remedy is by amending the scire facias issued by the justice. Bryant v. Smith, 47 Tenn. 113, 1869 Tenn. LEXIS 15 (1869).

4. Appeal from Action on Scire Facias — Effect.

A scire facias to revive a judgment is in the nature of a suit, and an appeal from the judgment of the justice (now general sessions judge) reviving a judgment does not bring the original suit into the circuit court. Bryant v. Smith, 47 Tenn. 113, 1869 Tenn. LEXIS 15 (1869). See Gregory v. Chadwell, 43 Tenn. 390, 1866 Tenn. LEXIS 65 (1866).

Where the action on the scire facias is tried in the circuit court, upon appeal from a justice (now general sessions judge), the court should render such judgment as the justice ought to have rendered, without a procedendo, and, upon a further appeal to the appellate court, the judgment creditor is entitled to the same judgment there. Whitworth v. Thompson, 76 Tenn. 480, 1881 Tenn. LEXIS 36 (1881); Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197, 1895 Tenn. LEXIS 98 (1895).

NOTES TO DECISIONS

1. Absence of One Who Will Administer.

Judgments may be revived by or against the heirs of a deceased plaintiff or defendant, when no person will administer on the estate of the deceased. Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

2. Waiver of Defects.

Where heirs appeared and filed pleas to merits of scire facias to show cause why judgment should not be revived against them and execution issue against realty descended, they waived any irregularity in its issuance or form. Bank of West Tenn. v. Marr, 81 Tenn. 108, 1884 Tenn. LEXIS 9 (1884).

NOTES TO DECISIONS

1. Decisions Before 1967 Amendment.

2. —Purpose.

The object of this and following sections is to enable a purchaser to ascertain from the records of the county of the landowner's residence whether or not there are judgment liens on his lands. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

3. —Application and Scope.

Since the county court is a court of record, its judgments come under the statute. Hickman v. Murfree, 8 Tenn. 26, 1827 Tenn. LEXIS 2 (1827).

This section refers to a judgment lien upon land, and has no reference to personal property, the lien of an execution upon such property, or the relation of that lien to the teste of the execution. Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887).

The execution of a bail bond does not create a lien on the lands of the obligors and is only an evidence of debt, for the recovery of which an action must be brought. It is different from a recognizance, which is a matter of record in the nature of a conditional judgment, and is proceeded upon by scire facias. Cole v. Warner, 93 Tenn. 155, 23 S.W. 110, 1893 Tenn. LEXIS 40 (1893).

The supreme court's judgments are under this section. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

4. —History.

The history of judgment liens and their enforcement may be found in Porter's Lessee v. Cocke, 7 Tenn. 29, 7 Tenn. 30, 1823 Tenn. LEXIS 2 (1823); Anderson v. Taylor, 74 Tenn. 382, 1880 Tenn. LEXIS 262 (1880); Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

5. —Nature of Lien.

The lien of a judgment will not, in equity, attach upon the mere legal title to land existing in the defendant, when the equitable title is in another person. Huffaker v. Bowman, 36 Tenn. 89, 1856 Tenn. LEXIS 60 (1856); Fite v. Jennings, 193 Tenn. 250, 246 S.W.2d 1, 1952 Tenn. LEXIS 289 (1952).

The judgment lien is only given by statute, and cannot be extended by construction. Davidson v. Shearon, 1 Shan. 304 (1874); Gardenhire v. King, 97 Tenn. 585, 37 S.W. 548, 1896 Tenn. LEXIS 185 (1896).

The judgment lien is a statutory lien which has always been strictly construed, and is lost, if the provisions of the statute are not complied with. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899); Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917); Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

6. —When Judgment Rendered.

A judgment is “rendered” when ordered or pronounced by the court. Southern Mortg. Guaranty Corp. v. King, 168 Tenn. 309, 77 S.W.2d 810, 1934 Tenn. LEXIS 59 (1935); Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587, 1951 Tenn. LEXIS 308 (1951).

7. —Time of Lien.

A judgment lien will run from the date fixed by a nunc pro tunc order, rather than from the date of actual entry, where no rights of other persons have intervened between the date of rendition and entry. Southern Mortg. Guaranty Corp. v. King, 168 Tenn. 309, 77 S.W.2d 810, 1934 Tenn. LEXIS 59 (1935).

8. —Burden of Proof.

The burden of proof is upon a judgment creditor seeking to enforce a statutory judgment lien against the real estate of the judgment debtor to bring his judgment within the provisions of the statute. Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897).

9. —Tender by Debtor — Effect on Lien.

A tender by a judgment debtor to the judgment creditor of the full amount of the judgment debt is not a satisfaction of the judgment, or a discharge of the judgment lien, and, if not continuous and kept good, it does not even stop the interest. The remedy of the debtor, if a legal tender be refused, is to apply to the court to restrain the sale under the execution, and enter satisfaction of the judgment by the money brought into court. Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

10. —Judgment Against Partnership as Lien Against Member.

Where one has a judgment against a partnership firm, and another has a judgment against a member of such firm for his individual debt, both judgments being rendered at the same term of court, they equally constitute liens upon the lands of the individual member. Reid v. House, 21 Tenn. 576, 1841 Tenn. LEXIS 73 (1841); House v. Thompson, 40 Tenn. 512, 1859 Tenn. LEXIS 147 (1859).

11. —Railroad Company — Lien.

A judgment against a railroad company in a county in which it is operated constitutes a lien on the realty of the corporation in that county. Barnett v. East T., V. & G. R. Co., 48 S.W. 817, 1898 Tenn. Ch. App. LEXIS 114 (1898).

12. —Attorney's Lien.

The lien of a lawyer on land for professional services, declared by order of the court in the case in which the services were rendered, is entitled to priority of satisfaction over the lien of a judgment creditor of his client, acquired by subsequent decree of the chancery court, sale thereunder, and purchase of the land, where the bill to enforce the lawyer's lien was filed before such sale was confirmed, but does not affect prior liens. Brown v. Bigley, 3 Cooper's Tenn. Ch. 618 (1878); Pierce v. Lawrence, 84 Tenn. 572, 1 S.W. 204, 1886 Tenn. LEXIS 145 (1886).

Where the final decree in a divorce action gave the wife's attorney a lien for his services on the defendant's property, it was a continuing lien and not such as to require execution and sale within one year from the decree. Clements v. Holmes, 22 Tenn. App. 230, 120 S.W.2d 988, 1938 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1938).

13. —Bankruptcy.

In action by state to fix judgment lien on land sold by judgment debtor after judgment was obtained and prior to filing petition in bankruptcy by judgment debtor, trustee in bankruptcy could not intervene, where the sale was made in good faith and for value, the trustee having no interest in such land so sold. State use of Cocke County v. Henderson, 160 Tenn. 85, 21 S.W.2d 1036, 1929 Tenn. LEXIS 77 (1929).

14. —Debtor as Mortgagee Under Conveyance Absolute on Its Face.

Where the conveyance of land is absolute on its face, but was intended as a mortgage, and is held to be such, it is not subject to levy of execution as the land of such conveyee, and the purchaser of such land under such execution sale obtains no title, because he can obtain no better or higher title than his debtor had. Leech v. Hillsman, 76 Tenn. 747, 1882 Tenn. LEXIS 5 (1882); Colyar v. Capital City Bank, 103 Tenn. 723, 54 S.W. 977, 1899 Tenn. LEXIS 151 (1899); Bryant v. Bank of Charleston, 107 Tenn. 560, 64 S.W. 895, 1901 Tenn. LEXIS 109 (1901).

Where the lender of money paid the same to a mortgagee, receiving a release of the mortgage from the mortgagee, and taking a new mortgage from the mortgagor to secure the loan, and both the release and the new mortgage were simultaneously registered, the transaction must be regarded as a continuous one, and as but a means adopted for passing the title to the new mortgagee, or the trustee under the mortgage, so as to prevent the judgment of a third party attaching as a lien on the land as that of the mortgagor while held for the instant in passing the title from the original mortgagee to the new mortgagee advancing the money to discharge the original mortgage. Edwards v. Weil, 99 F. 822, 1900 U.S. App. LEXIS 4189 (6th Cir. Tenn. 1900).

15. —Mortgagee — Rights as Against Judgment Liens.

The mortgagee of land, as security for a bona fide debt, is entitled to have other land then owned by the mortgagor subjected to the payment of a prior judgment against such mortgagor, which was a lien on all his land, as against persons who, subsequently to the execution of such mortgage, obtained liens on such other lands. Meek v. Thompson, 99 Tenn. 732, 42 S.W. 685, 1897 Tenn. LEXIS 85 (1897); King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

16. —Defective Conveyance Before Judgment.

Where the debtor conveyed his land before judgment, but the certificate of acknowledgment was defective and void and was not corrected until after the judgment, the judgment creditor has a plain remedy at law, under which he can enforce the judgment lien by a levy upon such land and a sale thereof under an execution, and the filing of a bill in chancery is unnecessary, and does not continue the lien. Harrison v. Wade, 43 Tenn. 505, 1866 Tenn. LEXIS 80 (1866); Stroud v. McDaniel, 80 Tenn. 617, 1883 Tenn. LEXIS 213 (1883); Coal Creek Mining Co. v. Heck, 83 Tenn. 497, 1885 Tenn. LEXIS 73 (1885).

17. —Unregistered Conveyance Before Judgment.

The debtor's unregistered conveyance of land, or his unregistered contract for the conveyance thereof, is subordinate to the judgment lien, or lien otherwise acquired, on the land of a judgment debtor, and the judgment creditor is not affected by knowledge or notice of such unregistered instrument, nor is the purchaser at the execution sale under such judgment. Stanley v. Nelson & Dickinson, 23 Tenn. 484, 1844 Tenn. LEXIS 145 (1844); Butler v. Maury, 29 Tenn. 420, 1850 Tenn. LEXIS 3 (1850); Ocoee Bank v. Nelson, 41 Tenn. 186, 1860 Tenn. LEXIS 43 (1860); Kinsey v. McDearmon, 45 Tenn. 392, 1868 Tenn. LEXIS 20 (1868); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Buchanan v. Kimes, 61 Tenn. 275, 1872 Tenn. LEXIS 370 (1872); Lyle v. Longley, 65 Tenn. 286, 1873 Tenn. LEXIS 346 (1873); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Lookout Bank v. Noe, 86 Tenn. 21, 5 S.W. 433, 1887 Tenn. LEXIS 19 (1887); Douglas v. Bank of Commerce, 97 Tenn. 133, 36 S.W. 874, 1896 Tenn. LEXIS 122 (1896).

18. —Debtor's Conveyance on Day of Judgment.

Where the judgment was rendered on the same day that the debtor executed a conveyance of his land, and there is nothing to show that the one was anterior to the other, the respective titles of the parties holding under the judgment and execution sale and the debtor's conveyance are equal, and, in an ejectment suit, the finding will be in favor of the defendant in possession. Murfree's Heirs v. Carmack, 12 Tenn. 269, 12 Tenn. 270, 1833 Tenn. LEXIS 61 (1833).

Where property was conveyed on day of judgment, evidence aliunde the record was inadmissible to show at what time of the day a judgment was rendered, or at what time of the day the court convened, when the record failed to show such time, and judgment related to time of the convening of court on that day. Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851); Cox v. Hodge, 31 Tenn. 371, 1851 Tenn. LEXIS 84 (1851). See Murfree's Heirs v. Carmack, 12 Tenn. 269, 12 Tenn. 270, 1833 Tenn. LEXIS 61 (1833).

19. —Lands Acquired Between Levy and Sale.

Where land was levied on before the judgment debtor acquired the legal title, which he thereafter acquired during the period of the judgment lien and before the execution sale, the execution sale passed title to the purchaser. Greenway & Marshall v. Cannon, 22 Tenn. 177, 1842 Tenn. LEXIS 61 (1842). But see, Pratt v. Phillips, 33 Tenn. 543, 1853 Tenn. LEXIS 83 (1853); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883). See also, Davis v. Benton, 34 Tenn. 665, 1855 Tenn. LEXIS 115 (1855); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Edwards v. Weil, 99 F. 822, 1900 U.S. App. LEXIS 4189 (6th Cir. Tenn. 1900).

Where judgment debtor only held equitable title at time of levy and execution, purchaser at execution sale acquired no title even though judgment debtor acquired legal title before such execution sale. Pratt v. Phillips, 33 Tenn. 543, 1853 Tenn. LEXIS 83 (1853); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883). But see, Greenway & Marshall v. Cannon, 22 Tenn. 177, 1842 Tenn. LEXIS 61 (1842).

20. —Conveyance After Judgment.

If the land be sold under execution, the title passes, as against the judgment debtor and those claiming under him by conveyance subsequent to the judgment and during the lien thereof, notwithstanding any irregularity in the registration of his title deed. Rochell v. Benson, Hunt & Co.'s Lessee, 19 Tenn. 3, 1838 Tenn. LEXIS 2 (1838); Wallace v. Hannum, 20 Tenn. 443, 1839 Tenn. LEXIS 76, 34 Am. Dec. 659 (1839); Ward v. Daniel, 29 Tenn. 603, 1850 Tenn. LEXIS 40 (1850).

The nonregistration of the judgment debtor's deed and his conveyance of the land to a third person, pending the existence of a judgment lien thereon, presents no obstacle to the enforcement of the lien by levy and sale that would justify an interposition of the court of equity on behalf of the lien creditors. Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897).

21. —After Acquired Realty.

The lien attaches to realty acquired by the debtor subsequently and continues for 12 months from time of acquisition of title. Chapron & Nidelete v. Cassaday, 22 Tenn. 661, 1842 Tenn. LEXIS 174 (1842); Huffaker v. Bowman, 36 Tenn. 89, 1856 Tenn. LEXIS 60 (1856); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Edwards v. Weil, 99 F. 822, 1900 U.S. App. LEXIS 4189 (6th Cir. Tenn. 1900).

22. —Momentary Seizin.

The judgment lien does not attach where a judgment debtor is the mere conduit or channel for the transmission of the title. Gordon v. Cox, 110 Tenn. 306, 75 S.W. 925, 1903 Tenn. LEXIS 62, 100 Am. St. Rep. 812 (1903).

23. —Determination of Time of Conveyance.

Where register neglected to state in his books the date of registration of mortgage deed, the true date could be proved by the register or his deputy in determination of question as to whether such deed or lien of judgment had priority. Miller v. Estill, 19 Tenn. 479, 1838 Tenn. LEXIS 78 (1838).

24. Decisions Since 1967 Amendment.

25. —Application and Scope.

Lien of judgment statutes are intended to subject every alienable interest in land to the lien of a judgment where the requirements of the statutes are met. Weaks v. Gress, 225 Tenn. 593, 474 S.W.2d 424, 1971 Tenn. LEXIS 329 (1971), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

The interest of a husband in a tenancy by the entirety is alienable and thus subject to judgment lien. Weaks v. Gress, 225 Tenn. 593, 474 S.W.2d 424, 1971 Tenn. LEXIS 329 (1971), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

A contingent remainder interest is not subject to execution and sale by a judgment creditor. Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

This chapter is not concerned with liens of execution. Bodin Apparel, Inc. v. Lowe, 614 S.W.2d 571, 1980 Tenn. App. LEXIS 422 (Tenn. Ct. App. 1980).

In calculating the value of real property for purposes of 11 U.S.C. § 522, the bankruptcy court determined that a mobile home was included in the value of the real property because, under Tennessee law, it had become a fixture: the debtors had maintained the mobile home as their primary residence, they connected the mobile home to the necessary utility services, they landscaped the property, and any attempt to remove the mobile home would have damaged it and the real property. In re Northern, 294 B.R. 821, 2003 Bankr. LEXIS 711 (Bankr. E.D. Tenn. 2003).

It would be both inequitable and futile to reopen the debtors' chapter 7 bankruptcy case in order to avoid a valid judicial lien filed under T.C.A. § 25-5-101(c). In re Tarkington, 301 B.R. 502, 2003 Bankr. LEXIS 1518 (Bankr. E.D. Tenn. 2003).

Trial court improperly granted summary judgment under Tenn. R. Civ. P. 56.04 to plaintiff in a suit in which it sought a declaratory judgment establishing the priority of its judgment lien because defendant had mistakenly released a prior deed of trust on the property in question and restoring the deed of trust to its priority position would not prejudice plaintiff's rights; although plaintiff's judgment lien was properly recorded under T.C.A. § 25-5-101 and became effective against later acquired interests under § 25-5-101 and T.C.A. § 66-24-119, and notwithstanding the fact that the mistaken release resulted in an equitable lien subject to the recording and notice provisions under T.C.A. § 66-26-101 and T.C.A. § 66-26-103, plaintiff was still entitled to seek the equitable remedy of cancellation of the release. Holiday Hospitality Franchising, Inc. v. States Res., Inc., 232 S.W.3d 41, 2006 Tenn. App. LEXIS 787 (Tenn. Ct. App. Dec. 14, 2006), appeal denied, Holiday Hospitality Franchising v. States Res., Inc.,  — S.W.3d —, 2007 Tenn. LEXIS 445 (Tenn. Apr. 30, 2007).

Pursuant to T.C.A. § 25-5-101(b)(1), a lien on a debtor's real property is perfected by recording the judgment in the register's office of the county where the property is located; as a result, the debtor's ex-wife clearly perfected her judgment lien when she filed the judgment in the county register's office where the debtor's property was located. Andrews v. Fifth Third Bank, 228 S.W.3d 102, 2007 Tenn. App. LEXIS 204 (Tenn. Ct. App. Apr. 5, 2007).

Where a creditor held a judicial lien on the debtors'  real property under T.C.A. § 25-5-101(b) and Tenn. R. Civ. P. 69.07(2), and where the real property was improved with the debtors'  residence and with an unoccupied farmhouse, the debtors could avoid the judicial lien under 11 U.S.C. § 522(f) as against the entire property, including the farmhouse, as they were entitled to claim a homestead exemption under T.C.A. § 26-2-301 against their property as a whole, including any improvements on the real property on which their residence was located. In making this determination, the court noted that T.C.A. § 26-2-301(f) provided that the debtors were entitled to a homestead exemption on real property used as a principal place of residence and that T.C.A. § 67-5-501(9)(A) defined real property as including structures and improvements. In re Young, 471 B.R. 715, 2012 Bankr. LEXIS 2153 (Bankr. E.D. Tenn. May 15, 2012).

Original judgment constituted an ordinary personal money judgment in favor of the father against the daughter in the amount of $ 193,000, with no prohibition against garnishment or other means of execution or enforcement of the judgment, and therefore the father could enforce the original judgment by garnishment or any other means allowed by law. Ammons v. Longworth, — S.W.3d —, 2019 Tenn. App. LEXIS 559 (Tenn. Ct. App. Nov. 14, 2019).

Trial court erred in awarding a wife a lien to secure the wife's alimony in solido payment against various parcels of real property because the parcels were owned by limited liability companies which the husband owned and not by the husband, individually. Barton v. Barton, — S.W.3d —, 2020 Tenn. App. LEXIS 502 (Tenn. Ct. App. Nov. 10, 2020).

26. —Conveyance After Judgment.

Where judgment lien attached to property before deed conveying such property was recorded and such lien was enforced by execution within the prescribed time although the levy of the execution did not take place until after the recording of such deed, the title of the purchaser at the execution sale was acquired pursuant to the judgment lien and was therefore superior to the title conveyed by the deed. Hames v. Archer Paper Co., 45 Tenn. App. 1, 319 S.W.2d 252, 1958 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1958).

27. —Failure to Record Lien.

Bank's default judgment against original property owners was ineffectual to defeat rights of bona fide purchasers where the judgment lien was not properly recorded. American Nat'l Bank & Trust Co. v. Wilds, 545 S.W.2d 749, 1976 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1976).

NOTES TO DECISIONS

1. Application.

A purely legal lien is enforced by execution, levy and sale, and cannot be projected or continued by steps under this section. Harrison v. Wade, 43 Tenn. 505, 1866 Tenn. LEXIS 80 (1866).

2. Compliance Required.

The lien is lost if the statutory provisions are not complied with, and unless suit is brought within days limited. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899) (Decided before 1967 amendment).

Where a creditor filed a copy of a judgment in the Montgomery County register of deeds on June 30, 2002, notwithstanding the failure of the creditor to file within 30 days after the first return of the execution, the creditor's petition of May 19, 2003 established a lien sufficient to support the proceedings that followed. Atkins v. Marks, 288 S.W.3d 356, 2008 Tenn. App. LEXIS 349 (Tenn. Ct. App. June 11, 2008), rehearing denied, 288 S.W.3d 356, 2008 Tenn. App. LEXIS 449 (Tenn. Ct. App. July 15, 2008).

3. “Other Property.”

This phrase is a party of a negative provision, not creating, but limiting and controlling, a lien. The phrase does not include personalty or a chose in action, which class of property is dealt with in § 25-5-103 and no judgment lien on personalty is provided for by this section. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

4. Priority of Registered Judgment.

The lien created by a registered judgment has priority over an unregistered contract for the conveyance of an equitable estate in land. Buchanan v. Kimes, 61 Tenn. 275, 1872 Tenn. LEXIS 370 (1872).

The filing of judgment in the register's office pursuant to this section is determinative on the question of priority of liens, and the first creditor to file a certified copy of his judgment shall take priority over creditors who file thereafter. Kelley v. McLemore, 560 S.W.2d 74, 1977 Tenn. App. LEXIS 298 (Tenn. Ct. App. 1977).

5. Failure to Register — Effect.

The lien on the equitable estate in land may be enforced in equity as against the judgment debtor and volunteers under him, without registration, but it will not prevail against a junior judgment properly registered and proceeded on as the statute directs, or a purchaser for value, without regard to notice. Chapron & Nidelete v. Cassaday, 22 Tenn. 661, 1842 Tenn. LEXIS 174 (1842).

6. Registration by Defendant.

Where joint judgment was taken on note and against the maker and two accommodation endorsers, and judgment was paid by one of such endorsers to avoid execution, his filing of a copy of the judgment in the county in which the maker's land was located did not give him a lien upon the maker's property. Lovelace-Farmer Co. v. Shaw, 4 Tenn. App. 458, — S.W. —, 1927 Tenn. App. LEXIS 198 (Tenn. Ct. App. 1927).

7. After-Acquired Equitable Estates.

Equitable estates in lands are not subject to judgment liens until this statute is complied with, but when this is done, the lien will attach to after-acquired equitable estates in land, as well as to legal estates, and continues for the same period. Chapron & Nidelete v. Cassaday, 22 Tenn. 661, 1842 Tenn. LEXIS 174 (1842); Davis v. Benton, 34 Tenn. 665, 1855 Tenn. LEXIS 115 (1855); Birdwell v. Cain, 41 Tenn. 301, 1860 Tenn. LEXIS 67 (1860); Branner v. Nance, 43 Tenn. 299, 1866 Tenn. LEXIS 54 (1866); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897).

8. Assignment of Equitable Estate to Creditor.

A judgment creditor receiving an assignment of the equitable estate in satisfaction of his judgment, may hold the same as against other and older judgment creditors who have not complied with the statutes to perfect and enforce the judgment lien. Chapron & Nidelete v. Cassaday, 22 Tenn. 661, 1842 Tenn. LEXIS 174 (1842).

9. Transfer of Title Bond.

The transfer of a title bond, by delivery or assignment in writing, puts the estate beyond the reach of the creditors of the party making the transfer. Robinson v. Williams, 40 Tenn. 540, 1859 Tenn. LEXIS 156 (1859); Kelly v. Thompson, 49 Tenn. 278, 1871 Tenn. LEXIS 5 (1871).

NOTES TO DECISIONS

1. Nature of Section.

The section is mandatory and must be strictly complied with. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

2. Nature and Effect of Lien.

The lien under this section is an execution lien and not a judgment lien and dates from the teste of the execution, but relation to the teste will not be enforced so as to deprive of his priority a subsequent judgment creditor who between the date of the teste and the registration of the judgment has fixed his lien on a chose in action under § 26-4-104. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

As long as the statutory requirements governing execution liens and writs of execution are observed, persons claiming an execution lien need not comply with the filing requirements of Article Nine of the Commercial Code because execution liens are not consensual security interests created by contract, and compliance with motor vehicle title and registration statutes is not required since execution liens depend on possession. Keep Fresh Filters v. Reguli, 888 S.W.2d 437, 1994 Tenn. App. LEXIS 503 (Tenn. Ct. App. 1994).

3. Choses in Action of Corporations.

This section does not apply to the choses in action of corporations, because they are rendered liable to levy of execution by § 26-3-103 and the registration requirement applies only to “choses in action or other personal property not liable at law” to execution; and an execution against a corporation, without registration of a memorandum of the judgment, fixes a lien on its choses in action, just as if they were “goods and chattels.” Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

NOTES TO DECISIONS

1. Application.

This section applies only when an actual execution has been returned by the sheriff or other officer marked unsatisfied. In re Ward, 42 B.R. 946, 1984 Bankr. LEXIS 4887 (Bankr. M.D. Tenn. 1984).

2. Execution — Time of Issuance.

Execution should probably be issued as soon as it may be legally done. Riddle v. Motley, 69 Tenn. 468, 1878 Tenn. LEXIS 120 (1878).

An execution is legally and regularly issued where it is issued during the term of which the judgment was rendered, but 30 days after its rendition. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

3. Bill to Enforce Lien — Time of Filing.

The lien of the execution on equitable personalty shall cease, unless a bill in equity to subject such equitable estate or interest is filed within 30 days “from the return of the execution unsatisfied.” Riddle v. Motley, 69 Tenn. 468, 1878 Tenn. LEXIS 120 (1878).

A judgment lien upon a debtor's equitable interest in land is lost unless the suit to enforce it is brought within 30 days after the return of the original execution and it will not suffice to bring suit within 30 days after the return of an alias execution nulla bona, if more than 30 days have elapsed after the return of the original execution. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

4. Subjecting Equitable Realty Without Nulla Bona.

The lien of a judgment upon equitable realty will sustain the jurisdiction of the chancery court to subject such realty to the satisfaction of the judgment, without a return of nulla bona. Montgomery v. McGee, 26 Tenn. 234, 1846 Tenn. LEXIS 111 (1846).

5. Liens of Execution.

This section concerns “liens of judgments” as opposed to “liens of execution.” Bodin Apparel, Inc. v. Lowe, 614 S.W.2d 571, 1980 Tenn. App. LEXIS 422 (Tenn. Ct. App. 1980).

NOTES TO DECISIONS

1. Perfection of Lien.

The lien given by § 25-5-101 is required to be perfected in conformity with this section, unless the provisions of § 25-5-106 are applicable. Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587, 1951 Tenn. LEXIS 308 (1951).

Because the debtor's ex-wife perfected her judgment lien prior to the bank, and the ten-year period had not lapsed, the ex-wife's rights as a lien holder were junior only to another creditor; her lien attached to the excess proceeds from the foreclosure sale and entitled her to payment in full before any payments were made to creditors of lesser priority. Andrews v. Fifth Third Bank, 228 S.W.3d 102, 2007 Tenn. App. LEXIS 204 (Tenn. Ct. App. Apr. 5, 2007).

2. Effect of Other Legislation.

There is no provision in the Bankruptcy Code which extends the state time limitation of this section within which the trustee must enforce a lien. In re Ward, 42 B.R. 946, 1984 Bankr. LEXIS 4887 (Bankr. M.D. Tenn. 1984).

The Tennessee cases do not readily allow exceptions to the statutory limitation on lien execution. In re Ward, 42 B.R. 946, 1984 Bankr. LEXIS 4887 (Bankr. M.D. Tenn. 1984).

State law does not preserve the judgment lien enforcement period beyond its term even though enforcement is precluded by the Bankruptcy Code. Weaver v. Hamrick, 907 S.W.2d 385, 1995 Tenn. LEXIS 458 (Tenn. 1995).

3. Attorney's Lien.

The declaration of a lien in favor of a lawyer is clearly not a judgment which must be executed within the year, for the judgment contemplated is a moneyed demand, for which an execution may issue. Brown v. Bigley, 3 Cooper's Tenn. Ch. 618 (1878).

Where the final decree in a divorce action gave the wife's attorney a lien for his services on the defendant's property it was a continuing lien and not such as to require execution and sale within one year from the decree. Clements v. Holmes, 22 Tenn. App. 230, 120 S.W.2d 988, 1938 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1938).

4. Effective Date of Judgment and Lien.

The final judgment, when entered, relates to the judgment by default, which created the lien. Clements v. Berry, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851).

Judgments in favor of several creditors against the same defendant, rendered upon different days of the same term of the court, as shown by the record, relate, as between the judgment creditors, to the first day of the term, and any moneys realized upon the executions issued thereon from that term must be divided pro rata on the amounts due upon such executions. Porter v. Earthman, 12 Tenn. 358, 1833 Tenn. LEXIS 72 (1833); Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851).

A judgment is a lien upon the real estate of the defendant from the time of the convening of the court, as shown by the minutes on the day the judgment was rendered, but if the minutes do not show the time the court convened, the judgment relates to the first instant of that day. Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851); Cox v. Hodge, 31 Tenn. 371, 1851 Tenn. LEXIS 84 (1851).

Judgments do not relate beyond the date of their rendition, so as to form liens upon the real estate of the debtor as against bona fide purchasers, for a valuable consideration, before the date of the rendition of the judgments. Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851).

Where the record shows at what time the court convened, judgments rendered on that day relate to that time; but if the record does not show at what time the court convened, evidence aliunde is inadmissible to show the time, and judgments rendered on that day relate, in such case, to the first instant of the day, and attach as liens upon the real estate of the judgment debtors, at the time of such relation; and when judgments are rendered on the first day of the term, executions issued thereon, tested of that day, must necessarily have the same relation, and attach as liens upon the personal property of the judgment debtors, at the same time. Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851); Cox v. Hodge, 31 Tenn. 371, 1851 Tenn. LEXIS 84 (1851).

5. Title of Purchaser.

If the land be levied upon and sold within one year after the rendition of the judgment, the purchaser's title relates to the date of judgment, and overreaches the intermediate alienations of the judgment debtor, although made to purchasers with knowledge of such judgment lien. Hickman v. Murfree, 8 Tenn. 26, 1827 Tenn. LEXIS 2 (1827); Miller's Lessee v. Estill, 16 Tenn. 452, 1835 Tenn. LEXIS 106 (1835); Dickinson's Lessee v. Collins, 31 Tenn. 516, 1852 Tenn. LEXIS 153 (1852); Birdwell v. Cain, 41 Tenn. 301, 1860 Tenn. LEXIS 67 (1860); Bangess v. Partee, 2 Shan. 264 (1877).

The enforcement of a judgment lien by execution levy and sale within 12 months gives the purchaser at such sale a title superior to that of one who bought the land from the judgment debtor while the lien was upon it, and before such sale. Purchaser may recover the land from one claiming a junior and inferior title under the judgment debtor. Hyder v. Butler, 103 Tenn. 289, 52 S.W. 876, 1899 Tenn. LEXIS 107 (1899).

Purchaser from judgment creditor after entry of judgment decree was entitled to priority over purchaser at sheriff's sale which was held more than one year after judgment was rendered by court although less than one year after date of entry of judgment nunc pro tunc as of date of rendition, as judgment lien ran from date fixed by nunc pro tunc order rather than date of actual entry of judgment. Southern Mortg. Guaranty Corp. v. King, 168 Tenn. 309, 77 S.W.2d 810, 1934 Tenn. LEXIS 59 (1935).

Where judgment lien attached to property before deed conveying such property was recorded and such lien was enforced by execution within the prescribed time although the levy of the execution did not take place until after the recording of such deed, the title of the purchaser at the execution sale was acquired pursuant to the judgment lien and was therefore superior to the title conveyed by the deed. Hames v. Archer Paper Co., 45 Tenn. App. 1, 319 S.W.2d 252, 1958 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1958).

6. After Acquired Lands.

Although the deed conveying after acquired land to the judgment debtor be unregistered, the judgment lien attaches to such land and continues for one year after acquisition. Vance v. McNairy, 11 Tenn. 170 (1832); Coward v. Culver, 59 Tenn. 540, 1873 Tenn. LEXIS 107 (1873); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897).

The judgment lien attaches to after acquired lands, instantly upon their acquisition, even though acquired after the expiration of one year from the rendition of the judgment; and such lien continues for the period of one year from the time the title may be acquired by the judgment debtor, within which period it may be made effectual by a levy and sale of such acquired lands, and such levy and sale will overreach and avoid any intermediate alienation of the judgment debtor within that period. Greenway & Marshall v. Cannon, 22 Tenn. 177, 1842 Tenn. LEXIS 61 (1842); Chapron & Nidelete v. Cassaday, 22 Tenn. 661, 1842 Tenn. LEXIS 174 (1842); Davis v. Benton, 34 Tenn. 665, 1855 Tenn. LEXIS 115 (1855); Huffaker v. Bowman, 36 Tenn. 89, 1856 Tenn. LEXIS 60 (1856); J. M. Relfe & Co. v. McComb, 39 Tenn. 558, 1859 Tenn. LEXIS 276 (1859); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Edwards v. Weil, 99 F. 822, 1900 U.S. App. LEXIS 4189 (6th Cir. Tenn. 1900); Wamble v. Gant, 112 Tenn. 327, 79 S.W. 801, 1903 Tenn. LEXIS 108 (1903).

7. Liens of Judgments at Different Terms.

Where several judgments have been rendered against a party at different terms of the court, and he, thereafter, acquires the legal title to real estate, the liens of the several judgments attach at the same instant, and continue for one year thereafter; and if the land be levied on by executions from such judgments, within that period, there is no priority of satisfaction. J. M. Relfe & Co. v. McComb, 39 Tenn. 558, 1859 Tenn. LEXIS 276 (1859); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897).

8. Revestment of Title Upon Paying Off Mortgage — Computation of Period.

Upon the payment of a mortgage debt, which revests the title in the mortgagor, the land immediately passes under the judgment lien so to remain for one year from the date of revestment, although the judgment is then more than one year old. Wamble v. Gant, 112 Tenn. 327, 79 S.W. 801, 1903 Tenn. LEXIS 108 (1903).

9. Death of Debtor — Subsequent Enforcement of Lien.

Real estate is bound by the judgment, and does not descend to the heir, but is in the custody of the law, if the judgment be rendered before the death of the defendant, against whom an execution may issue at any time before the expiration of a year and a day, after which time it cannot issue without a scire facias against the heirs. Preston v. Surgoine, 7 Tenn. 71, 7 Tenn. 72, 1823 Tenn. LEXIS 5 (1823); Ward v. Southerland & Mc'Campbell, 7 Tenn. 1, 1823 Tenn. LEXIS 62 (1823); Taylor v. Doe, 54 U.S. 287, 14 L. Ed. 149, 1851 U.S. LEXIS 860 (1851); Bryant v. McCollum, 51 Tenn. 511, 1871 Tenn. LEXIS 197 (1871); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880); Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

A judgment lien is not extended by revivor of decedent's judgment, in the name of his personal representative, nor is such revived judgment a new judgment for the purpose of creating a new lien which will exist for a year from the date of the revivor. So, where an execution issued from the revived judgment is levied, more than one year from the date of the original judgment, upon lands of the judgment debtor, which he had previously sold and conveyed by deeds duly registered, the execution sale of the same will be enjoined at the instance of such purchasers. Davidson v. Shearon, 1 Shan. 304 (1874).

The lien of a judgment obtained in the lifetime of the defendant, and affirmed in the supreme court, after his death, attaches to his lands, and may be enforced in an insolvency administration suit instituted before the affirmance of the judgment in the supreme court, by a cross bill filed by the judgment creditor, for the provision for the ratable division of insolvent estates of decedents among their creditors was not intended to affect liens acquired in the lifetime of the insolvent deceased debtor, but was designed merely to abolish the preference which existed at common law. Bangess v. Partee, 2 Shan. 264 (1877).

Where an execution on the judgment of a court of record is issued after, but bears teste before, the judgment debtor's death, and is afterwards levied on lands subject to the judgment lien, which are sold thereunder, without revivor of the judgment, within 12 months after its rendition, the sale is valid, and communicates to the purchaser the judgment debtor's title to the lands. Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

10. Delay of Enforcement Beyond Statutory Period.

A levy and sale for the enforcement of the judgment lien, made at any time within the period of one year after the rendition of the judgment or after the dismissal of adverse proceedings, overreaches and avoids all intermediate alienations by the judgment debtor, of whatever character; but the levy and sale must be made within the time limited, because, at the expiration of the one year, the lien is extinguished for all purposes, and all conveyances bona fide made by the judgment debtor, whether absolute or in trust, whether made before the creation of the lien, or during its existence, or after its expiration, become valid and binding, and cannot be questioned by the judgment creditor. Dickinson's Lessee v. Collins, 31 Tenn. 516, 1852 Tenn. LEXIS 153 (1852); Davis v. Benton, 34 Tenn. 665, 1855 Tenn. LEXIS 115 (1855); Branner v. Nance, 43 Tenn. 299, 1866 Tenn. LEXIS 54 (1866); Harrison v. Wade, 43 Tenn. 505, 1866 Tenn. LEXIS 80 (1866); Smart v. Evans & Mason, 49 Tenn. 223, 1870 Tenn. LEXIS 219 (1870); Kelly v. Thompson, 49 Tenn. 278, 1871 Tenn. LEXIS 5 (1871); Anderson v. Douglass, 1 Cooper's Tenn. Ch. 436 (1873); Bangess v. Partee, 2 Shan. 264 (1877); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

Unless a judgment lien is enforced by sale of the land within 12 months after the rendition of the judgment, it will not prevail against subsequent encumbrances, even where the sale was delayed by agreement, and execution was levied and bill filed within 12 months to enforce the lien. Gardenhire v. King, 97 Tenn. 585, 37 S.W. 548, 1896 Tenn. LEXIS 185 (1896); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

A judgment lien cannot be extended beyond the statutory period by the judgment creditor's unnecessary and unsuccessful suit in equity for its enforcement. Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

Unfounded doubt as to existence of the right is no excuse for delay beyond the statutory period. Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

The right of enforcement is lost only through failure to exercise the right within the period of time provided under former T.C.A. § 25-5-105(a). ATS, Inc. v. Kent, 27 S.W.3d 923, 1998 Tenn. App. LEXIS 659 (Tenn. Ct. App. 1998).

11. Stay of Execution.

12. —Effect on Lien.

The judgment lien is not lost or suspended by a voluntary agreement entered of record to suspend for four months the issuance of an execution, if the land be levied on and sold within the one year. Love v. Harper, 23 Tenn. 113, 1843 Tenn. LEXIS 30 (1843).

13. —Bankruptcy.

Limitations period of one year was tolled by the automatic stay provisions in the bankruptcy code. In re Harbin, 25 B.R. 703, 1982 Bankr. LEXIS 5203 (Bankr. W.D. Tenn. 1982), superseded by statute as stated in, Weaver v. Hamrick, 907 S.W.2d 385, 1995 Tenn. LEXIS 458 (Tenn. 1995). But see Weaver v. Hamrick, 907 S.W.2d 385, 1995 Tenn. LEXIS 458 (Tenn. 1995).

Since the lien enforcement period continues to run during a bankruptcy proceeding, a judgment lien creditor ordinarily has three options: (1) move the bankruptcy court to lift the stay; (2) execute on the judgment after the bankruptcy proceeding terminates, if the three-year period has not expired; or (3) execute on the judgment during the 30-day grace period following the lifting of the stay or termination of the bankruptcy proceeding. Weaver v. Hamrick, 907 S.W.2d 385, 1995 Tenn. LEXIS 458 (Tenn. 1995).

14. Failure to Sell Attached Lands Within One Year.

The lien of judgment creditor fixed by levy of attachment is not lost by failure to sell the property attached within one year from rendition of the judgment. Campbell v. Atwood, 47 S.W. 168, 1897 Tenn. Ch. App. LEXIS 135 (1897).

15. Execution Sale Void — Relief in Chancery.

Upon setting aside a judgment creditor's purchase of his debtor's land, at execution sale, on the ground that several distinct tracts and lots were sold together, the chancery court will, upon the creditor's cross bill, enforce the lien of his judgment and levy against the land. Blackburn v. Clarke, 85 Tenn. 506, 3 S.W. 505, 1886 Tenn. LEXIS 77 (1887).

16. Injunction in General Creditors' Suit.

Where in a general creditors' suit all creditors were enjoined from proceeding otherwise than in such suit, the injunction is binding upon judgment lienors having actual notice of the injunction and their liens are not lost by expiration of the year. They may have executions after injunction was terminated. Sweetwater Bank & Trust Co. v. Howard, 16 Tenn. App. 91, 66 S.W.2d 225, 1932 Tenn. App. LEXIS 37 (Tenn. Ct. App. 1932).

17. Typographical Error.

Where certified copy of sheriff's deed recited that judgment was obtained and execution issued in November 1930, that levy and return by the sheriff was in November 1930, that order of condemnation and sale was made in February 1930, that the venditioni exponas issued in March 1931 and that the property was sold in April 1931, the date of sale as recited in the deed was a typographical error and should have been February 1931 so that the deed was not void on ground that more than one year had expired between the time of order of condemnation and sale and the time of the venditioni exponas. Williams v. Williams, 25 Tenn. App. 290, 156 S.W.2d 363, 1941 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1941).

18. Alienation of Property.

Alienation of property after a judgment lien has attached constitutes no obstruction to a levy and sale; and no alienation, in whatever form, will defeat a judgment lien after it has attached. ATS, Inc. v. Kent, 27 S.W.3d 923, 1998 Tenn. App. LEXIS 659 (Tenn. Ct. App. 1998).

Creditor's judgment lien was not destroyed by the conveyance of real property from debtor to buyer; therefore, buyer's purchase money mortgage held by bank was subordinate to the judgment lien of creditor. ATS, Inc. v. Kent, 27 S.W.3d 923, 1998 Tenn. App. LEXIS 659 (Tenn. Ct. App. 1998).

NOTES TO DECISIONS

1. Application and Scope.

Any adverse proceeding which prevents the execution of the judgment, such as a writ of error coram nobis or coram vobis, or a supersedeas, is within the provisions of this section. Planters' Bank v. Union Bank, 24 Tenn. 304, 1844 Tenn. LEXIS 57 (1844); Brinkley v. Welch, 75 Tenn. 278, 1881 Tenn. LEXIS 113 (1881).

A judgment lien upon lands is lost if not enforced by levy and sale within a year after it attaches, unless its enforcement is prevented by injunction, writ of error, appeal, or other adverse court proceeding. Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

The operation of the act is limited to those cases only where the judgments constitute liens, and does not extend to any other class of judgments or decrees. Fort v. Fort, 118 Tenn. 103, 101 S.W. 433, 1906 Tenn. LEXIS 84 (1907).

This section, which tolls the 12-month period if sale is “prevented” by injunction or by appeal, was not rendered inapplicable because the debtors never filed a bond which would have stayed execution. In re Bell, 55 B.R. 246, 1985 Bankr. LEXIS 4923 (Bankr. M.D. Tenn. 1985).

2. Appeal.

An appeal from a judgment at law or decree in equity suspends, but does not destroy or annul, the judgment lien upon the debtor's land. Covington v. Bass, 88 Tenn. 496, 12 S.W. 1033, 1889 Tenn. LEXIS 70 (1890); Denton v. Nashville Title Co., 112 Tenn. 320, 79 S.W. 799, 1903 Tenn. LEXIS 107 (1903); Fort v. Fort, 118 Tenn. 103, 101 S.W. 433, 1906 Tenn. LEXIS 84 (1907).

As a result of this tolling section, in the case of appeal in the nature of a writ of error, where other statutory steps are taken, the lien given by § 25-5-101 is not lost and can be perfected within one year after the appeal is dismissed or the judgment below affirmed. Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587, 1951 Tenn. LEXIS 308 (1951).

3. —Second Judgment Rendered During Pendency of Appeal.

Where a judgment is rendered during the pendency of an appeal and the person securing the second judgment, while the appeal is pending, attempts to assert the second judgment as prior to the first because the necessary proceeding has not been taken within the year to assert the first lien, the one obtaining the lien in the first instance in the circuit court will prevail, his judgment being affirmed, since this section was passed to protect the person who first obtains the lien. The affirmance of the judgment of the circuit court by the court of appeals is a mere renewal of continuance of the old judgment. When this judgment is affirmed the rights of the parties revert to the entry of the judgment in the circuit court. Shepard v. Lanier, 192 Tenn. 608, 241 S.W.2d 587, 1951 Tenn. LEXIS 308 (1951).

4. —New Judgment on Appeal.

The affirmance by the appellate court of a judgment or decree upon appeal in error or writ of error, by the rendition of a new judgment, or the rendition of a new judgment upon dismissing a supersedeas, will not affect the statutory lien. Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883). See Shepherd v. Woodfolk, 78 Tenn. 593, 1882 Tenn. LEXIS 229 (1882).

5. Prevention of Levy.

A levy is necessary for a sale, and, if an officer, with process in his hands in ample time for the making of levy and sale, is prevented from doing these things incident to sale, he is as clearly prevented as if a levy had been made. The section does not mean only prevention after a levy. Brinkley v. Welch, 75 Tenn. 278, 1881 Tenn. LEXIS 113 (1881). See also Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

6. Application to Set Aside Continued.

A judgment is not affected by an application to set it aside which is “continued until next term without prejudice to either party.” Freeman v. Dawson, 110 U.S. 264, 4 S. Ct. 94, 28 L. Ed. 141, 1884 U.S. LEXIS 1689 (1884).

7. Creditor's Bill to Remove Obstruction After Levy.

A judgment creditor who has an execution levied upon land, and files his bill to remove an obstruction, as a fraudulent conveyance, has a prior lien over a creditor who afterwards obtains judgment, has execution issued and levied, and land sold within one year, and before the hearing of the bill filed by the first judgment creditor, because he had acquired a specific lien on the property, and had a right to come into equity to remove the obstruction which would prevent a sale at a fair valuation. Shepherd v. Woodfolk, 78 Tenn. 593, 1882 Tenn. LEXIS 229 (1882). See Wessel v. Brown, 78 Tenn. 685, 1882 Tenn. LEXIS 237 (1882); Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

8. General Creditors' Bill.

A general creditors' bill enjoining execution on judgment was sufficient to continue the lien under this section. Sweetwater Bank & Trust Co. v. Howard, 16 Tenn. App. 91, 66 S.W.2d 225, 1932 Tenn. App. LEXIS 37 (Tenn. Ct. App. 1932).

Where judgment creditor asked an adjudication that a decree rendered on a creditor's bill did not enjoin him from executing, he was not estopped from later asserting that the decree did in effect prevent levy and sale within the statutory period. Sweetwater Bank & Trust Co. v. Howard, 16 Tenn. App. 91, 66 S.W.2d 225, 1932 Tenn. App. LEXIS 37 (Tenn. Ct. App. 1932).

9. “Other Adverse Proceeding.”

10. —Other Adverse Proceeding Not Shown.

Unnecessary, unsuccessful suit in equity for enforcement of lien cannot extend the time. Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

Where claimant of lien filed a bill asserting its priority over a mortgage subsequently registered, such proceeding was not “adverse,” and did not excuse failure to take out execution within 12 months. The proceedings are only adverse when restraining sale, by analogy to an injunction. Alienation after lien attaches is not an obstruction. Unfounded doubts as to existence of rights cannot avail. Fidelity & Deposit Co. v. Fulcher Brick Co., 161 Tenn. 298, 30 S.W.2d 253, 1929 Tenn. LEXIS 58 (1930).

11. Loss of Lien by Enjoining Appeal After Period.

A judgment creditor filing a bill to enjoin the judgment debtor from prosecuting an appeal to the supreme court, and from assigning errors in the judgment, and obtaining an affirmance of his judgment as the result of affirming his decree in the chancery court, loses the lien of his judgment, because such affirmance did not relate back to the date of the original judgment, and did not perpetuate the lien thereof. Shepherd v. Woodfolk, 78 Tenn. 593, 1882 Tenn. LEXIS 229 (1882).

12. Duration of Lien After Adverse Proceeding.

The lien continues for one year after the adverse proceeding is dismissed. Brinkley v. Welch, 75 Tenn. 278, 1881 Tenn. LEXIS 113 (1881); Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

Where the issuance of execution within 12 months after the affirmance of judgment in the supreme court is obstructed by an injunction or otherwise, the judgment lien still exists for 12 months after the removal of such obstructions, and if execution be issued contrary to legal prohibitions, it will not operate as a waiver of the judgment lien. Bangess v. Partee, 2 Shan. 264 (1877).

13. Irregularities in Execution — Effect Where Adverse Proceedings Instituted.

Adverse proceedings (by writ of error and supersedeas in this case) will keep alive the judgment lien, notwithstanding irregularities or omissions in the execution actually issued. Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

14. Suspended Lien — Status Against Intervening Rights.

The lien is superior to a mortgage executed by the judgment debtor made during the period of suspension, as by appeal. Covington v. Bass, 88 Tenn. 496, 12 S.W. 1033, 1889 Tenn. LEXIS 70 (1890).

NOTES TO DECISIONS

1. Appellate Court Decree.

The section has no application after the decree of the appellate court has been made the decree of the lower court in the county of debtor's residence. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

The decree of an appellate court sitting in another county does not become the decree of the lower court until it is adopted and made the decree thereof by minute entry. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).