Citizens' Bank & Trust Co. v. Bayles

• Decision Date: 15 March 1926
• Citation: 281 S.W. 932
• Parties: CITIZENS' BANK & TRUST CO. v. BAYLES et al.
• Court: Tennessee Supreme Court

281 S.W. 932

CITIZENS' BANK & TRUST CO. v. BAYLES et al.

Supreme Court of Tennessee.

March 15, 1926.

Certiorari to Court of Civil Appeals.

Bill by the Citizens' Bank & Trust Company against H. G. Bayles and C. H. Bunch. Decree dismissing bill was affirmed by the Court of Appeals, and complainant petitioned for writ of certiorari, which was granted. Judgment of Court of Appeals reversed, and decree entered against last-named defendant in favor of complainant.

Bowen & Bowen, of Knoxville, for Citizens' Bank & Trust Co.

S. E. N. Moore, of Knoxville, for Bayles and another.

HALL, J.

The bill in this cause was filed in the chancery court of Knox county October 16, 1923, by the Citizens' Bank & Trust Company, a corporation doing business and having its situs and office in Granger county, Tenn., against H. G. Bayles, who, the bill alleged, was a resident of Knox county, and C. H. Bunch, who, the bill alleged, was a resident of Jefferson county, but who was, in fact, a resident of Hamblen county, upon three promissory notes drawn by Bayles, two of which were secured by the indorsement of Bunch.

Process was issued to Knox county for Bayles and to Jefferson county for Bunch. Both of these processes were returned unexecuted by the officers to whom they were delivered for service. Thereupon alias processes were issued to Knox and Hamblen counties for Bayles and Bunch, respectively. The process issued to Hamblen county for Bunch was duly served, and he was regularly brought before the court. The alias process issued to Knox county was returned unexecuted; the officer stating that he had made search for said defendant, and that he was not to be found in Knox county, and that he was informed that Bayles had gone to North Carolina.

The defendant Bunch filed a plea in abatement, averring that, at the time of the filing of the bill, and since, he was not a resident of Knox county, nor was process served upon him in Knox county.

The chancellor heard the issue made by the plea in abatement on April 23, 1924, which was at the November term, 1923, of the court. The testimony of the deputy sheriff, to whom the process which had issued to Knox county for Bayles was delivered for service, was to the effect that Bayles was a resident of Knox county at the time the bill was filed, and at the time the original process was issued; that he called at the residence of Bayles in the city of Knoxville for the purpose of serving the process upon him, but learned from his family that he was temporarily out of the state and in the state of Kentucky; that he therefore returned the process unexecuted; that when the alias process was delivered to him for service on Bayles he again called at his residence in Knoxville, and learned that, between that date and the date upon which he attempted to serve the original process, Bayles had returned from Kentucky, and had removed with his family from the state of Tennessee to North Carolina, and that he therefore returned the alias process unexecuted on Bayles.

The chancellor overruled the plea in abatement, to which the defendant Bunch excepted. Bunch was granted time in which to answer the bill, and he did answer, setting up certain defenses in his answer which need not be stated in this opinion.

The cause came on to be finally heard by the chancellor on October 1, 1924, which was at the May term, 1924, of the court, upon the bill, exhibits thereto, and answer; the complainant having taken no proof, but relied upon the notes, which were exhibits to the bill, to make out his cause. The defendant Bunch took no proof to sustain the averments of his answer.

On the hearing, complainant voluntarily dismissed his bill as to the defendant Bayles, for the reason that he was never able to get service upon him. Thereupon, on motion of the defendant Bunch, he was permitted to withdraw his answer theretofore filed and refile his plea in abatement, which was by the chancellor sustained, and the bill dismissed at complainant's costs.

From the decree of the chancellor allowing the defendant Bunch to withdraw his answer and refile his plea in abatement, and sustaining the plea in abatement and dismissing the bill, complainant prayed, was granted, and perfected, an appeal to the Court of Appeals, and assigned errors.

The errors assigned by complainant in the Court of Appeals challenged the decree of the chancellor upon two grounds:

(1) As to the right of the court to permit the defendant Bunch to withdraw his answer and refile his plea in abatement; the chancellor having previously acted upon and overruled the former plea of the same nature.

(2) That the plea in abatement was not sustainable, because, at the time of the filing of the bill, Bayles was a resident of Knox county, and, this being true, the service of process upon him, or the failure to serve it, was wholly immaterial, and did not deprive the court of its jurisdiction of the defendant Bunch.

The Court of Appeals overruled these assignments of error, and affirmed the decree of the chancellor.

The cause was brought to this court by complainant on petition for the writ of certiorari to have the judgment of the Court of Appeals reviewed and reversed. The writ was granted, the cause set down for argument, and argument had.

It is insisted by complainant that the judgment of the Court of Appeals affirming the decree of the chancellor is erroneous, for the reason that the chancellor permitted the defendant Bunch, after his original plea in abatement had been overruled and said defendant had voluntarily appeared and answered the bill, to withdraw his answer and refile his plea in abatement.

Prior to the passage of chapter 121, Acts of 1897 (section 4625a1 of Shannon's Annotated Code), it was held in numerous cases that a voluntary appearance of a defendant is equivalent to the service of a summons within the jurisdiction of the court. University v. Cambreling, 6 Yerg. 79; Calhoun v. Lillard, 4 Hayw. 56; Pope v. Harrison, 16 Lea, 82; Frazier v. Pankey, 1 Swan, 75; Hopper v. Fisher, 2 Head, 255; Squibb v. McFarland, 11 Heisk. 563.

In Simpson v. Railway Co., 15 S. W. 735, 89 Tenn. 304, it was held that, if the defendant appear and make defense to the merits, after his plea in abatement had been overruled upon a trial, it is a waiver of the plea.

Appearance and defense on the merits, by a defendant in chancery, after his plea in abatement, that the subpœna to answer has been executed upon him while serving as a juror, has been overruled, was held to be a waiver of the plea. Wilson v. Scruggs, 7 Lea, 635; Boon v. Rahl, 1 Heisk. 12.

It was held in the first case cited that, if the defendant wishes to have the opinion of the Supreme Court on the sufficiency of his plea, he must abide by it and decline to plead over.

By section 1 of chapter 121, Acts of 1897, it is provided that a defendant has the right, upon the overruling of a plea in abatement in any cause filed by him to any action, to plead to the merits, and rely upon any defense, as if said plea had not been interposed.

Section 2 of said act provides that a defendant can in any suit plead both in abatement and in bar at the same time, and 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.

In Railroad v. McCollum, 59 S. W. 137, 105 Tenn. 623, this court, in construing this act, said:

"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. * * * The spirit and intent of the act seems to be to do away with the former necessity of standing by pleas in abatement and succeeding or failing upon that defense alone in a single issue, and to give the parties the right to do all their pleading at the same time if they wished."

While the precise point we are now considering was not presented in Sewell v. Tuthill, 79 S. W. 376, 112 Tenn. 271, it was held that, upon judgment being rendered against a plea in abatement, either upon motion to strike out, or upon being set down for argument upon its sufficiency, or upon demurrer, or upon an issue as to its merits, the...