On Petition to Rehear. We are presented with very able and courteous petition to rehear. It is said that our opinion of Nov. 28, 1949, "pretermits one controlling point urgently insisted by solicitors for this defendant; or at least does not deal with it, viz.: that Code Section 8581 did not operate to toll the running of the statute of limitations." Apparently this is answered by the opinion complained of, wherein, 232 S.W.2d 664, it is said: "We hold the continued non-residence of this defendant from 1939 tolled the statute of limitations. . . . Further, that the fact he had money or property within the State subject to attachment *Page 78 did not suspend the statute of limitations." We repeat that holding.
It is said we were wrong in giving an enlarged construction to the allegation in the bill that Mr. Sutherland was a non-resident; that this was an allegation in presentae, and did not warrant the broad construction we gave it. For the reasons given in the original opinion, we think we were correct in our holding. If not, then the answer says: "This defendant shows to the Court that Complainant Bank sat by more than six years holding the said note of May 5, 1936, of the Johnson County Motor Company, and instituted no action thereon, although two of the partners all during said time were residents of Johnson County, Tennessee, and one or both of them owned property in said county, and this defendant, altho a non-resident of Tennessee, was frequently in Johnson County," etc. (Emphasis supplied.)
Complainant was entitled to the benefits of the admissions contained in the answer, Hutsell v. Citizens Nat. Bank, 166 Tenn. 598 at 611, 64 S.W.2d 188, which rounded out the allegations of the bill, Bartee v. Tompkins, 36 Tenn. 623 at 638-639.
It is said that the allegation of non-residence was necessary to obtain an attachment and, consequently, should be so limited. To this we cannot agree. "The bill should contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition" . . . . Code Sec. 10391. The allegation of non-residence need not be repeated. Every reasonable presumption in favor of the bill should be made. Anderson v. Mullenix, 73 Tenn. 287; Parks v. Margrave, 157 Tenn. 316, 7 S.W.2d 990.
We adhere to our holding in the original opinion that the allegation of non-residence "could be construed in *Page 79 the enlarged sense of his having been a non-resident at the time of the accrual of the cause of action, which certainly would embrace any subsequent non-residence after the accrual of the right of action", thus bringing the suit within the second part of section 8581 of the Code.
It is said that if the bill had pleaded Sec. 8581, it "would not have been complete without an allegation that because of such non-residence the defendant could not be served with process". We think a fair inference is that a non-resident cannot be served with process.
It is urged that the fact that the visits made by Mr. Sutherland to Mountain City every year made him subject to process and thus prevented the tolling of the statute. These were short visits, and known to the complainant, but the aggregate time was not sufficient to make the six years contemplated by the statute. Then the question, did these visits, with the resultant liability to service of process, constitute him a resident? This is answered in the negative by 34 Am. Jur. (Lim. of Actions) Sec. 218, page 175, wherein it is said . . . "a mere transient visit of a person for a time at a place does not make him a resident while there. . .". And in 54 C.J.S., Limitations of Actions, Section 212 at page 236, it is said, . . . "mere visits to the state on business or pleasure will not be sufficient to bring the suspensory statute into operation."
It is argued that the demurrer should have been sustained. We have heretofore pointed out that in our opinion the bill sufficiently charged such facts as would toll the statute of limitations. If not, then it was supplemented by the answer of the defendant. Even where the bill contains a prayer for general relief, chancery may grant relief upon matters not raised by the bill, as though *Page 80 they were, when they are clearly disclosed in the answer and proof. See cases annotated under "Relief on Defendant's Answer of Proof", Vol. 6 Williams' Code of Tenn. Sec. 10391, page 921.
We think the determinative question is: Did the fact that Mr. Sutherland maintained a banking account with the complainant allow the operation of the statute of limitations? We showed in our original opinion that this was a fluctuating account, and quoted the testimony of Mr. Sutherland as saying it "was a small account" and "sometimes it would get pretty low, sometimes it may get up pretty good, I believe one time it was up to six or seven thousand dollars" and we pointed out that the ledger sheet was not filed in evidence. It is not shown there was a constant balance in an amount sufficient to cover the debt sued for. But if the contrary were true, we feel bound by the holding of the Supreme Court in the Edgington case, 179 Tenn. 83,162 S.W.2d 1082, wherein it was said: "We wish to emphasize the fact that it is only in those cases where the action may be prosecuted without the necessity of personal service upon the defendants, and full relief granted, that the statute does not apply."
We found that the complainant did not have the legal right to apply the personal deposit of Sutherland to the payment of partnership obligations. This made it necessary to resort to legal action to obtain a personal judgment and "full relief", thus bringing into application the principle enunciated in the Edgington case. We cannot see any difference between the attachment of real estate, as in the Edgington case, and the attachment of money on deposit, as in the instant case. We very carefully considered the cases relied upon by the petitioner, but concluded they are to be distinguished from the *Page 81 Edgington case for the reason noted. We adhere to that holding.
There are other matters discussed by petitioner. They were carefully considered by us in the formulation of our original opinion which we think meets the equities of the situation.
It results that the petition to rehear is denied. *Page 82