Kirkland v. Calhoun. statutes and decisions, declaring that any person interested to contest the validity of such foreign will may do so in the same manner as though it had been originally presented for probate in our courts. Code, section 3922. Error is assigned upon the failure of the court of civil appeals to act upon the second ground of petitioner's motion for peremptory instructions made in the circuit court to the effect that there was no evidence of the testatrix's unsoundness of mind at the time of the execution of the will. While the record shows an exception to the action of the court, there was no appeal therefrom, and no assignment of error was presented to the court of civil appeals. Were the question before us, however, we would be constrained to hold the action of the circuit court correct, as the record contains testimony directly asserting the unsoundness of mind of the testatrix. This was the determinative issue, and one, particularly in contests of this character, wholly within the province of the jury. As said in Tyrus v. Railroad, 114 Tenn., 579, 86 S. W., 1074: "There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried." The petition for certiorari filed by the contestants is founded upon the action of the court of civil appeals in refusing to hold that the proponent was estopped to submit as a defense the conclusiveness of the foreign probate, because the question was not first presented in the county court. The right to contest a will is a preliminary question which may, and by the better practice should, be tried Kirkland v. Calhoun. in the county court with the right of appeal to the circuit court (Shaller v. Garrett, 127 Tenn., 665, 156 S. W., 1084, and cases cited) but the question is not concluded by failure of original defense in the county court. The circuit court has full jurisdiction of the formation and trial of all issues involved in the contest of wills. Thus upon petition in the county court, to contest a will, if the executor does not appear nor answer, and the contest be certified for the trial in the circuit court, it was held in Cornwell v. Cornwell, 30 Tenn. (11 Humph.), 485, that the executor could there present the question of petitioner's right to contest. The judgment of the court of civil appeals is affirmed, with costs. . Lookout Knitting Mills v. Reid. LOOKOUT KNITTING MILLS v. EDWARD S. REID et al.* (Nashville, December Term, 1922.) 1. PLEADING. be amended. Plea to jurisdiction overruled for insufficiency may After a plea in abatement questioning the jurisdiction of the court has been overruled for insufficiency, it may under the statute of jeofails (Thompson's-Shannon's Code, sections 4583, 4587) be amended notwithstanding section 6205, providing, "upon a plea or demurrer argued and overruled, no other plea or demurrer shall be received, but the defendant shall answer," an amended plea to the jurisdiction being not within the mischief intended to be remedied by that section. (Post, pp. 404-406.) Cases cited and approved: Brien v. Marsh, 1 Tenn. Ch., 625; Whittaker v. Whittaker, 78 Tenn., 99. Codes cited and construed: Secs. 4583, 4587, 6128, 6129, 6205, (T.-S.). 2. PLEADING. Plea in abatement held not double. A plea in abatement containing a denial that the funds garnished were defendant's property, and alleging ownership in the garnishee, held not double, since no matters, however multifarious, will make a pleading double if together they constitute but connected proposition or entire point. (Post, pp. 406-408.) one Cases cited and approved: Waggoner v. White, 58 Tenn., 741; Pilcher v. Hart, 20 Tenn., 524. 3. PLEADING. Failure to allege non-ownership of property within jurisdiction not fatal to plea in abatement questioning jurisdiction. A plea in abatement denying the jurisdiction of the court, and al *As to garnishment of debt evidenced by negotiable paper, see note in L. R. A., 1918C, 731. Lookout Knitting Mills v. Reid. leging certain garnished funds did not belong to defendant, but to another, held not insufficient for failure to allege defendant had no other property within the jurisdiction, or that defendant had not received any funds from the garnishee since commencement of the suit. (Post, pp. 408, 409.) 4. CARRIERS. Funds paid for shipments made under draft and bill of lading subsequently sold to bank held not subject to garnishment. A purchaser of yarn under contract providing for regular shipments was garnished by one suing the seller, and enjoined from making further payments at a time when nothing was owing. The seller thereupon declined to make further shipments, and the contract was modified so that an advance payment was made for one shipment and others were made through a bank by draft with bill of lading attached, which was discounted and sold outright to the bank. Held, that the garnishee was not required to insist upon strict performance of the contract, and that, since the bank purchased the draft outright, the fund paid upon delivery of the yarn belonged to it, and was not subject to garnishment. (Post, pp. 409, 410.) Case cited and approved: Implement Co. v. Bank, 128 Tenn., 320. FROM HAMILTON. Appeal from the Chancery Court of Hamilton County. HON. W. B. GARVIN, Chancellor. MILLER & MILLER, for appellant. STRANG & FLETCHER, S. B. SMITH and CANTRELL, MEACHAM & MOON, for appellees. Lookout Knitting Mills v. Reid. MR. JUSTICE GREEN delivered the opinion of the court. The complainant filed this bill to recover damages for breach of contract to supply it with certain yarns. The contract was averted to have been made with defendant Reid acting as broker for the Ft. Valley Cotton Mills, a Georgia corporation. The original bill sought to attach by garnishment certain funds charged to be due from the Signal Knitting Mills, a Tennessee corporation located at Chattanooga, to the Ft. Valley Cotton Mills. An attachment was issued, and also an injunction prohibiting the Signal Knitting Mills from paying any debt due or to become due to defendant Ft. Valley Cotton Mills. The Signal Knitting Mills answered that it was not indebted in any sum to the Ft. Valley Cotton Mills. The original bill was filed December 10, 1919. The complainant filed an amended and supplemental bill on May 18, 1920, reiterating the charges of the original bill, and adding as defendants the Hamilton National Bank of Chattanooga and the Citizens' Bank of Ft. Valley, Ga. It was averred that there was a sum of money on deposit in the Hamilton National Bank to the credit of the Citizens' Bank of Ft. Valley, Ga., but that said fund in reality belonged to Ft. Valley Cotton Mills, and it was sought to impound this fund as the property of the Ft. Valley Cotton Mills, and attachment accordingly issued and was levied on said fund in the Hamilton National Bank. The Hamilton National Bank answered, stating that it had said fund on deposit to the credit of the Georgia bank, and submitted itself to the orders of the court in respect thereto. The Citizens' Bank of Ft. Valley, Ga., answered, and averred that the fund attached belonged to it; that it represented the proceeds of a draft which 147 Tenn.-26 |