City of Nashville v. Webb

• Decision Date: 28 February 1905
• Parties: MAYOR, ETC., OF NASHVILLE v. WEBB et al.
• Court: Tennessee Supreme Court

85 S.W. 404

114 Tenn. 432

MAYOR, ETC., OF NASHVILLE v. WEBB et al.

Supreme Court of Tennessee.

February 28, 1905

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suit by the mayor and city council of Nashville against B. M. Webb and others. From a judgment of the Court of Chancery Appeals affirming a decree for plaintiff, defendants appeal. Affirmed.

Cantrell & McMillin, for appellant Webb. K. T. McConnico and Hill McAlister, for appellee City of Nashville.

NEIL J.

The bill in the present case was filed to enjoin the execution of a judgment rendered against the complainant in the circuit court of Wilson county on the 22d of January, 1901.

The facts, so far as necessary to be stated, are that about the 3d of January, 1900, the defendant B. M. Webb instituted suit in the circuit court of Wilson county against the Nashville Chattanooga & St. Louis Railway Company and the Louisville & Nashville Railroad Company and the present complainant hereinafter spoken of as the city of Nashville.

The original writ was served on the Nashville, Chattanooga & St. Louis Railway Company at one of its local offices in Wilson county, and a counterpart was issued to Davidson county for the other two defendants, and served, as to the city of Nashville, upon its mayor, J. M. Head. The city did not enter its appearance in the cause, or make any defense to the action, with the result that, on the date above stated, a judgment by default was entered against it in favor of B. M. Webb for the sum of $4,000. The ground of the action laid in the declaration in that case was that the plaintiff therein, Webb, had suffered personal injuries by reason of a defective sidewalk in the city. After judgment had been thus obtained an execution was issued to Davidson county, and while in the hands of the sheriff of the latter county, it was enjoined under the present bill. Among other reasons for enjoining the execution and canceling the judgment, it was insisted in the bill that the circuit court of Wilson county acquired no jurisdiction of the city of Nashville by the service of the counterpart writ above referred to, and the judgment was therefore wholly void. The chancery court of Davidson county took this view of the matter, and rendered a decree awarding a perpetual injunction against the execution, and declared the judgment itself void. On appeal, the Court of Chancery Appeals affirmed the decree of the latter court. From the decree of the Court of Chancery Appeals an appeal was prosecuted to this court, and errors have been assigned here.

We are of opinion that the decrees of the two courts above referred to were correct. It is true, there is no statute which makes an action brought against a municipal corporation a local action; nor could there ever be a necessity for such statute. Actions may be made by statute either transitory or local. Transitory actions are such as are said to follow the person of the defendant wherever he may be found. Carlisle v Cowan, 85 Tenn. 165, 2 S.W. 26. Such, in general, are personal actions. Actions concerning realty may be regarded in a sense as personal, inasmuch as the title thereto rest in the owner, wherever he may be, yet, in obedience to a wise public policy, such actions are usually made local by statute. But actions against municipal corporations are inherently local. These bodies cannot change their situs or their place of abode. They cannot remove from one...