Henderson v. Garrett

HARRIS, J., delivered the opinion of the court. At the October term, A.D. 1852, of this court, this cause was presented, on appeal from the decree of the chancellor, dissolving the injunction originally granted therein. The decree of the chancellor was then reversed, and the injunction reinstated, so far as the same relates to the judgment in the Probate Court of Hinds county, in favor of said Garrett v. Cecilia Reagan, as administratrix of William Cargill, deceased, for $2330.75 ; and so far as the same relates to certain garnishments against the said Cecilia, founded on judgments against the said Garrett, and intended to reach this amount due said Garrett, in the hands of said Cecilia. The said Cecilia having died, and the said suit having been revived in the name of the said Lawson F. Henderson, as administrator de bonis non, on the estate of Cargill, the same is now submitted, on appeal from a decree of the Superior Court of Chancery, dismissing the bill. ■ Under the view taken of this case, in the opinion delivered in this court in 1852, retaining the injunction, as before stated; so far as the same related to the judgment in favor of Garrett, and the garnishments against the representative of Cargill, and without committing ourselves as to some of the positions then assumed, we do not see upon what principle the bill could be wholly dismissed, regarding that opinion as the law of this case. The main object of the bill, was to restrain Garrett, the appellee, from collecting his judgment or decree, rendered in the Probate Court of Hinds county. It alleges, that appellee qualified jointly with the said Cecilia, widow of said Cargill, as administrator on his estate. That the said Cecilia conveyed to the wife of Garrett, the appellee, a tract of land as compensation for his services as such administrator. That becoming dissatisfied, she prevailed on appel558 lee to resign his trust; but that, in violation of his original agreément, appellee claimed his commissions as administrator, which were allowed him by the Probate Court, in the decree already mentioned. Independent of other considerations which might be invoked, as appearing on the face of the bill to dispose of this branch of the case, the deed conveying the tract of land to Mrs. Garrett, purports to be founded on the consideration of ten dollars, affection, and friendship; and, so far as the bill seeks a cancellation of this deed, or to enforce the agreement set up as the real consideration of said deed, or to have the said judgment in the Probate Court satisfied, it will be sufficient to say, that the answer denies every allegation in the bill setting up any agreement in relation to payment, or settlement of his commissions, either before or since said decree. There being no proof in the record, save the deed itself, to support these allegations, so far as this purpose of the bill is concerned, it was properly dismissed. The bill, however, further alleges, that appellant has been garnisheed by judgment creditors of the said appellee, naming them specifically, and prays, that said judgment creditors and the said Garrett may be required to interplead, that an account be taken, and the amount ascertained to be due on said judgments be decreed to be paid to the plaintiffs therein, and. the said Garrett be perpetually enjoined from collecting the amount so decreed, from appellant, and for general relief. The answer admits the existence of these several judgments against the appellee, as stated; admits the issuing of the garnishments, and that they are still pending against appellant; and sets up no valid defence against the relief sought, in this aspect of the bill. The decree of the chancellor below, seems to have been made upon a regular submission of the case, upon bill, answer, and proofs, and upon consideration of the merits involved. The case is presented to us, in the same manner. Overlooking, therefore, mere technical difficulties, as waived by both parties, and regarding the former opinion delivered in this case, as settling the right of appellants to the relief sought, unless the defendant could gainsay the same, the decree of the chancellor so far as it dismisses ap [559] pellant’s bill, as to said judgment in tbe Probate Court, and the said garnishments against appellee, must be reversed, and cause remanded for further proceedings.