Cheatham v. Howell

• Decision Date: 31 March 1834
• Parties: CHEATHAM and others v. HOWELL.
• Court: Tennessee Court of Appeals

14 Tenn. 311

CHEATHAM and others

v.HOWELL.¹

Supreme Court of Errors and Appeals of Tennessee.

March Term, 1834.

In this case the notice was given to the plaintiff in error, and his securities in a prison-bounds bond, that a motion would be made against them on the third Monday of the January term, 1832, of the Davidson county court. No motion was made on that day or at that term; but, at the April term following, a motion was made and judgment rendered. It is not shown in the record that the plaintiff in error ever appeared by himself or counsel. The circuit court gave judgment for the plaintiff in said suit, from which the defendants prosecute this writ of error.

J. S. Yerger and Thompson, for plaintiffs in error.

This is a writ of error upon the judgment of the circuit court rendered in this cause upon a writ of error from the county court, upon a judgment rendered on a prison-bounds bond. The error assigned in the record, which it is necessary to notice, is this: “The said record does not show that the motion was made on the day specified in the notice, and does not show on what day the motion was made in court.”

This is a summary proceeding, and everything necessary to entitle the plaintiff to his judgment must appear of record; he must show that he notified the defendant to appear on a day certain to hear the motion; and that, upon the day fixed upon in the notice for the making the motion, he appeared and had the motion entered, tried, or continued; for, unless this is done, he would be out of court and the motion waived. It could not be entered of any previous day of the term, nor of any subsequent day, because the party had fixed his own day. Hardin's Kentucky Reports, 28, 29; Ex parte Miller, 1 Yer. 435; 3 Marshall's Kentucky Rep. 142.

T. Washington, for defendant in error.

GREEN, J., delivered the opinion of the court.¹

The simple question to be decided is whether in these summary proceedings by motion, where notice is necessary, the motion must be made on the day specified in the notice.

It is contended by the defendant in error that, after the notice is served, the cause is in court, like a case commenced by process issuing out of the court, and that it is subject to the same rules of proceeding. In principle, this cannot be the case. Where a cause originates by process issuing from the court, and returnable there, the defendant is brought into court, and is there to make his defence so long as the cause remains on the docket. If the plaintiff will not proceed with the cause, the defendant may coerce a trial, nonsuit the plaintiff, or cause the suit to be discontinued; or, in some way known to the law, he can force a disposition of the cause. But in a case by motion, like this, there is nothing upon which the court can act until the motion is...