Burger v. Parker

• Decision Date: 13 December 1926
• Parties: BURGER v. PARKER et al.
• Court: Tennessee Supreme Court

290 S.W. 22

BURGER v. PARKER et al.

Supreme Court of Tennessee.

December 13, 1926.

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by Horace Burger against Ben Parker and others. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded.

Ford & Bryan, of Chattanooga, for plaintiff in error.

Charles C. Moore, of Chattanooga, for defendants in error.

McKINNEY, J.

Horace Burger, a resident of Hamilton county, instituted this suit against the sheriff of Marion county and his official bondsmen, to recover damages for an assault committed upon him by said sheriff in Marion county.

By a plea in abatement, said sheriff and his bondsmen made the question that this suit cannot be prosecuted in Hamilton county for the reason that the cause of action is local and not transitory.

The trial court sustained said plea and dismissed the suit, and plaintiff has appealed to this court and assigned the judgment of the trial court for error.

It is conceded that the action would be maintainable in Hamilton county had the sheriff been sued as an individual, but a distinction is sought to be made where the sheriff is sued officially, upon the idea that he, as sheriff, could not commit the offense in another county, since his jurisdiction is limited to the county for which he is elected sheriff. McCaslin v. McCord, 116 Tenn. 690, 94 S. W. 79, 8 Ann. Cas. 245.

Section 4513 of Shannon's Code is as follows:

"In all transitory actions, the right of action follows the person of the defendant, unless otherwise expressly provided."

In Pearce v. Atwood, 13 Mass. 353, it was said:

"But we believe that the Legislature, in the use of the phrase `transitory action,' had reference to the general common-law division of actions into transitory and local, and not to such actions as, by any particular statute of England, were confined to particular counties."

Blackstone describes local actions as being those in which "possession of land is to be recovered, or damages for an actual trespass, or for waste, etc., affecting land"; and transitory actions as being those which are brought for "injuries that might have happened anywhere, as debt, detinue, slander, and the like." 3 Blackstone Commentaries, 294.

Perhaps the best distinction to be found between local and transitory actions is that:

"If the cause of action is one that might have arisen anywhere, then it is transitory; but if it could only have arisen in one place, then it is local; and for the most part, actions which are local are those brought for the recovery of real estate or for injuries thereto, or for easements." Cooley on Torts (2d Ed.) 451.

These definitions have been approved by many courts, as will be seen from the cases listed in 40 Cyc. 19, note 80.

The plaintiff could have been assaulted in any county, although not by the sheriff of Marion county officially. But the distinction which the authorities seem to sustain is that the subject of the injury, rather than the means used, is the determining factor. If the subject is local and cannot be injured at any other place, then the cause of action is local. As previously stated, in the instant case the plaintiff, the subject, could have been injured, by assault, in any county in the state.

In Mason v. Warner, 31 Mo. 508, it was said:

"The distinction exists in the nature of the subject of the injury complained of, and not in the means by which, or the place at which, the injury was effected."

In 40 Cyc. 48, it is said:

"The test throughout this clause of localized actions turns on the situation of `the subject of the action.' By this is meant, in some cases, not that which has caused the injury, but that which has sustained the injury."

We have been referred to no case holding that, in the absence of statute, a sheriff may not be sued officially in another county.

In 40 Cyc. 87, it is said:

"Actions, in nature of trespass or trespass on the case, against public officers for acts of omission or commission in the conduct of an office, were transitory at common law; but by statute many of such actions were localized. Similar legislation followed in America at an early day, but not in all states."

In the same book, on page 85, note 10, it will be noted that in most of the states such actions have been localized by statute, but it is conceded that no statute of this character exists in Tennessee.

In 27 R. C. L. 787, it is said:

"Though in the case of municipal corporations a somewhat different rule obtains, ordinarily the character of the parties to a suit, whether natural persons or artificial, or belonging to some other distinct class, in no wise affects the nature of the action as local or transitory. Thus, actions against public officers for personal wrongs are subject primarily to the same legal requirements respecting venue as are similar actions against others. In the absence of statute, tort actions against public officers are not to be deemed to be local, it seems. Like actions of the same character against private individuals, they are transitory and suit may be instituted in a county other than that in which the officer performs his official acts, or wherever jurisdiction of the person may be acquired. This is true, despite an early English statute (21 Jac. 1, c. 12), making such actions local, the statute declaring that actions...