Title 21, Proceedings In Chancery

This title applies to all equitable proceedings in any other court.

Bills required to be under oath may be sworn to in the state before any judge, clerk of a court, general sessions judge or notary public, whose attestation shall be deemed evidence of the fact. Bills required to be under oath may be sworn to out of the state, before a notary publ…

Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases involving complicated accounting, as to such accounting and those elsewhere excepted by law or by this code, and all the issues of fact in …

The chancellors, in vacation as well as in term, have the power to appoint referees or commissioners to take accounts, where the clerk and master is interested or is unable to attend, or in other cases where it is deemed expedient.

The chancellors may also, in like manner, appoint persons to serve original, mesne or final process, in particular cases, under special application.

The chancellor may also, in vacation as well as in term, but if in vacation, on reasonable notice to the opposite party, regulate and control all proceedings in the master's office, and, for good cause shown, may set aside, modify or alter any such proceedings, upon such terms as…

In all cases in which the chancellor of the division in which any cause is pending is incompetent, the chancellor of any adjoining division has the same power, in vacation, to make all such orders and decrees, issue all such process, and dissolve, restore or modify injunctions, t…

The clerk shall issue, upon demand, to any one of the defendants, the defendant's agent or attorney, to whom no copy of the bill appears by the sheriff's return to have been delivered, a certified copy of the bill, to be charged in the bill of costs.

Attachments, injunctions and all other process issued to any one (1) county shall embrace the names of all the defendants required to be served with the process residing in that county.

(a) Personal service of process on the defendant in a court of chancery is dispensed with in the following cases:(1) When the defendant is a nonresident of this state;(2) When, upon inquiry at the defendant's usual place of abode, the defendant cannot be found so as to be served …

(a) In case personal service is not used, if the defendant does not cause an appearance to be entered, the clerk, as soon as the necessary affidavit is made, shall enter upon the rule docket an order requiring the defendant to appear at a certain day named in the order, being a r…

(a) Where publication is made for a nonresident defendant, the clerk of the court in which the suit is filed shall mail a copy of the complaint or, after the first publication, mail a copy of the newspaper clipping containing the publication to the nonresident defendant, directed…

The clerk shall keep a memorandum book in which shall be noted the issuance of every subpoena for witnesses, commissions, with the day of issuance, and any other proceedings of the clerk if not entered on the clerk's records, rule docket, or minutes; and the book shall be open fo…

If the defendant upon whom process has been served fails to appear and defend in the time required by law, the bill may be taken for confessed; or the complainant may proceed by process of contempt to compel an answer.

(a) The only process of contempt is an attachment, which is issued upon order of the chancellor at the instance of the complainant, upon the return of the subpoena duly served by the proper officer, or affidavit by the officer of such service. (b) The attachment may be made retur…

A defendant who appears and refuses to answer fully shall be committed to jail, there to remain until the defendant is purged of the contempt and complies with the requirements of the law by filing a full and complete answer.

If the defendant is committed for contempt, the complainant may proceed with the action as if the bill had been taken for confessed, the allegations being taken as in all respects true. But, in that case, all further proceedings for the contempt shall cease, and the court, or the…

Nothing in this part shall deprive the clerk and master, or the court, of the power of granting to the defendant, upon good cause shown, further time within which to file answer.

Cases in chancery brought by attachment of property under title 29, chapters 6 and 7 are governed, in respect to the effect of the decree pro confesso, by §§ 29-6-161 — 29-6-165.

In all other cases, a decree against a defendant without personal service of process who does not appear to defend is not absolute for three (3) years from the decree, unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fai…

The death of the defendant proceeded against without personal service, whether the death occurs before or after the filing of the bill, does not render the proceedings void, but the defendant's heirs or representatives, as the case may be, have the right, within three (3) years f…

The original defendant, or the defendant's heir, representative or assignee claiming under the defendant by virtue of any act done before the commencement of the suit, may, within six (6) months after service of a copy of the decree, or within three (3) years after the decree, be…

It is no objection to the execution of a decree rendered against a defendant that it was founded on a bill taken for confessed, without personal service; but the court may require the complainant to give sufficient security, in such sum as the court deems proper, to abide by and …

The decree, if executed before it is set aside under any of the provisions of §§ 21-1-401 — 21-1-405, shall be a protection to all persons acting upon its validity, and confer a good title to all property sold under it.

In all cases in equity, if the judge is a party, is directly interested in the suit, is connected by blood or affinity within the prohibited degrees with any person so interested or is incompetent as having been of counsel, the venue may be changed to the nearest chancery court, …

The chancery court in which any suit or proceeding is brought in which the complainant seeks relief predicated upon, closely related to or growing out of matters or things theretofore adjudicated by final judgment or decree of the circuit or any other court, whether or not the ci…

When an answer is required to be sworn to, the oath may be administered as in case of the bill of complainant. The power of the court or clerk and master to appoint a special commissioner to administer the oath, either in this or any other state, is not affected by this section.

A sworn answer in chancery, when required by a bill of discovery or when the oath to the answer is not waived, shall have no more weight or effect in evidence than the deposition of the defendant filing the answer.

(1) The clerk and master may, at the clerk and master's office:(1) Receive and enter on the rules the suggestion and proof of a party's death, and order and issue the necessary process to revive;(2) Make orders for publication against defendants in cases in which publication is a…

Rules, notices, orders and other proceedings in a cause, made with or by the clerk and master, shall be entered by the clerk and master in a well-bound book, to be kept for that purpose, each entry to be made in order and with the correct dates attached.

The rules, notices and proceedings described in § 21-7-702 shall be made at the rule days, unless otherwise authorized by this code.

All rules or orders taken at any one (1) court shall be inserted in the rule docket by the first rule day that is more than twenty (20) days after the term.

Each day of a regular, special or adjourned term of the court of chancery, and also the first and third Mondays of every month in vacation, is a rule day.

The clerk and master shall give to the opposite party, or the opposite party's solicitor, notice of any rule, order or other proceeding taken at the clerk and master's office, affecting the party.

The clerk and master shall not set aside, modify or alter any rule or order of the chancellor, where that power is given by this code; or any rule or order of the clerk and master's own at office without reasonable notice to the opposite party or the opposite party's solicitor.

If the court see proper in the first instance, or if upon issuance of the attachment, the delinquent cannot be found, a writ of sequestration may issue against the estate of the delinquent, to compel obedience to the decree.

Courts of chancery are further authorized to issue such process, mesne and final, as has been used in the chancery courts; and all writs for the collection of money, or to obtain the possession of real or personal property, in use in the common law courts, may be adapted to the e…

(1) Where, upon the foreclosure of a mortgage or deed of trust, or in any case, the specified land to be sold is mentioned in the decree, the court, upon the application of the complainant, may order that:(1) The property be sold on a credit of not less than six (6) months nor mo…

Courts of chancery may enforce rules, orders or decrees by process against the person in default, or by process against the person in default's property.

An attachment issues by order of the court upon the officer's return or affidavit of the service of a copy of the decree ten (10) days beforehand, and that the party has failed or refused to comply with the terms of the order.

If the defendant in execution keeps out of the way or absconds, so that a copy of the decree cannot be served upon the defendant, or if the defendant evades receiving the decree, an affidavit of that fact, and that a copy of the decree was tendered the defendant, or left at the d…

In attachments for the nonperformance of decrees, no bail is to be taken, but the party shall be committed to jail, there to remain until the party performs the decree.

The court, or a judge of the court in vacation, may, in such case, grant a habeas corpus, and discharge the party, if the party purges the contempt, upon such conditions in respect to the party's compliance with the decree as the judge thinks proper.

The adverse party, the adverse party's agent or attorney is entitled to reasonable notice of the hearing upon the writ of habeas corpus granted pursuant to § 21-1-808, if in the state, and may interrogate the party in contempt upon the party in contempt's oath, and controvert the…

In all cases remanded by the supreme court or court of appeals to any court for the execution of an order of reference, order of sale or for other proceedings directed in the decree of the appellate court or in the decree of the lower courts as affirmed or modified by the appella…

Upon the receipt of any certified copy of decree, or mandate of any appellate court, the clerk and master or clerk of the lower court, shall file the decree or mandate, copy it upon the rule docket or minute book, if the court so directs, and notify the attorney of record in the …