Cincinnati, N.O. & T.P.R. Co. v. McCallum

• Decision Date: 17 November 1900
• Citation: 59 S.W. 136,105 Tenn. 623
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. McCALLUM et al.
• Court: Tennessee Supreme Court

59 S.W. 136

105 Tenn. 623

CINCINNATI, N. O. & T. P. RY. CO. v. McCALLUM et al.

Supreme Court of Tennessee.

November 17, 1900

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by McCallum, Montgomery & Co. against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Will D Wright, for appellant.

Taylor & Culton, for appellees.

SNODGRASS C.J.

The only question to be determined in this case is whether the court erred in refusing to allow the plaintiff in error to offer proof in support of its plea in abatement. Issue had been joined on this plea; but the defendant, admitting that it owed the plaintiff below $19.35, amount of overcharge in freight,--one of the items of plaintiff's claim,--filed a plea of tender, accompanied with this amount of money. The circuit judge held that the effect of this plea was to overrule the plea in abatement, and declined to allow proof on the plea. Defendant appealed, and assigned this as error. Against this assignment of error the plaintiff relies on the act of 1897. This act is chapter 121, on page 277 of the published acts of that year. Its caption is, "An act to permit a defendant to plead to the merits in any suit where a plea in abatement has been overruled, and to permit a plea in bar to be filed at the same time of the filing of plea in abatement, and to provide how the issues are to be tried." The act is as follows:

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that a defendant has the right, upon the overruling of a plea in abatement, for any cause filed by him to any action, to plead the merits, and rely upon any defenses as if said plea had not been interposed.

"Sec. 2. Be it further enacted, that a defendant can, in any suit, plead both in abatement, and in bar, at the same time, and that said plea in bar is no waiver of the plea in abatement, and when so pleaded, both pleas shall be heard at the same time and judgment rendered on each plea."

This act was passed March 27, 1897, approved April 29, 1897, and took effect from and after its passage. The circuit judge was of the opinion that a plea of tender did not come within the literal meaning of the act, and that such a plea was a waiver of the plea in abatement. It will be noticed that in the first section defendant was given the right, upon the overruling of a plea in abatement, to plead to the merits and rely upon any defenses as if said plea had not been interposed. The second is not so broad in its terms, but, we think, must have the same construction, and that the plea of tender may...