Broaddus v. Partrick

• Decision Date: 05 April 1941
• Citation: 149 S.W.2d 71
• Parties: BROADDUS v. PARTRICK.
• Court: Tennessee Supreme Court

149 S.W.2d 71

BROADDUS v. PARTRICK.

Supreme Court of Tennessee.

April 5, 1941.

Error to Circuit Court, Shelby County; J. P. M. Hamner, Judge.

Action by Mrs. Virginia Ware Broaddus, guardian, etc., against P. A. Partrick, Jr. To review a judgment sustaining a plea in abatement to plaintiff's action, plaintiff brings error.

Reversed.

Canada & Russell, Cooper Turner, and C. P. J. Mooney, all of Memphis, for plaintiff.

W. A. Percy, of Memphis, and Farmer, Denney & Leftwich, of Nashville, for defendant.

GREEN, Chief Justice.

This is an appeal from the judgment of the court below sustaining a plea in abatement to plaintiff's action.

In certain proceedings in the probate court of Shelby County, an attachment for the body of P. A. Partrick, Jr., issued on June 24, 1937, returnable to June 30, 1937. Partrick resided in Davidson County and the order directed the sheriff of Davidson County to take Partrick into custody and have him before the court at ten A. M. on the day aforesaid. The order, however, provided that the sheriff might release Partrick from custody upon his making a bail bond in the penal sum of $500, conditioned as required by law for his appearance before the court on the date aforesaid. The attachment issued as ordered, was executed by the sheriff of Davidson County, and Partrick released upon giving the prescribed bond conditioned for his appearance in the probate court of Shelby County at the time mentioned.

The hearing was postponed until July 2, 1937, and the appearance bond of Partrick was continued in full force and effect by consent of all parties, including the sureties, to stand for his appearance at that time.

Partrick returned to Nashville but went back to Memphis on July 2, 1937, and duly made his appearance before the Probate Judge. While in Memphis, on the latter occasion, the present suit was instituted against Partrick in the circuit court of Shelby County and process served on him. The plea in abatement asserted immunity for Partrick from service of process or suit on the ground that he had come into Shelby County as a party to another suit and was exempt from the service of civil process while attending court and for such reasonable time before and after trial as might enable him to go from and return to his home. It is admitted that if Partrick had been in Memphis as a suitor or witness in a civil suit he would have been exempt from the service of process in another civil suit, but it is insisted that the proceedings against him in the probate court were contempt proceedings, criminal in nature, and that the rule relied on by Partrick has no application.

We considered the matter at some length in Anderson v. Atkins, 161 Tenn. 137, 29 S.W.2d 248, noted a...