O'Dell v. City of Knoxville
| Decision Date | 09 September 1964 |
| Citation | 54 Tenn.App. 59,388 S.W.2d 150 |
| Parties | Elmer Franklin O'DELL, Defendant--Plaintiff-in-Error, v. CITY OF KNOXVILLE, Plaintiff--Defendant-in-Error. 54 Tenn.App. 59, 388 S.W.2d 150 |
| Court | Tennessee Court of Appeals |
Reuben H. Nichols, Knoxville, for plaintiff in error.
W. E. Fitzgerald, Knoxville, for defendant in error.
Elmer Franklin O'Dell, hereinafter referred to as the defendant, was arrested by a police officer of the City of Knoxville, hereinafter referred to as the City. Pursuant to the arrest a warrant was issued on June 24, 1963, charging defendant with 'operating an automobile upon the public streets of the City of Knoxville[54 TENNAPP 61] while under the influence of an intoxicant,' which quoted words were stamped in the face of the warrant in red ink by means of a rubber stamp. The warrant was issued over the facsimile signature of the City Judge of Knoxville, which was stampted in red ink by means of a rubber stamp.
The defendant was tried, found guilty and fined $100.00 and costs by the City Judge on July 10, 1963.
He appealed to the Circuit Court of Knox County by executing a surety bond in the sum of $250.00 to cover the fine and costs in the event he was cast on the appeal.
On August 7, 1963, the case was heard before the Honorable James M. Haynes, Circuit Judge, sitting without the intervention of a jury. The trial court found the issues in favor of the City and dissmissed the appeal and affirmed the judgment of the City Court. A judgment was entered against defendant and the two sureties on his appeal bond for the fine of $100.00 and the costs.
Thereupon, defendant filed a motion in arrest of judgment which was overruled. He perfected an appeal to the Supreme Court, which Court transferred the appeal to this Court.
On his appeal to the Supreme Court he filed three assignments of error in which he insisted the warrant failed to state a cause of action; the warrant was void because it did not bear the genuine signature of the City Judge; and the City ordinance and the fine of $100.00 imposed on defendant by authority of the ordinance contravene Article 6, Section 14 of our Constitution.
After the case was transferred by the Supreme Court to this Court by an opinion of that Court holding that [54 TENNAPP 62] the action was in the nature of a civil action by the City to collect a penalty, the defendant filed a supplemental assignment of error in which he insists the fine and the ordinance under which it was levied contravene Article 1, Section 18 of our Constitution.
We see no merit in defendant's first assignment and overrule it for the reason we are able to ascertain from the original warrant in the transcript before us, although some of the letters stamped therein are not distinct, that the defendant was charged with 'violation an ordinance or ordinances of the City, by operating an automobile upon the public streets of the City of Knoxville while under the influence of an intoxicant on or about the 23rd day of June, 1963, at or near Broadway and Bluff St.'
We are of the opinion defendant's second assignment is not good and overrule it. This assignment is based upon the fact the warrant has a facsimile of the signature of Chas. G. Kelly, City Judge, stamped upon it. There is no proof in the record the City Judge had not adopted the facsimile as his signature. Nor is there any proof he did not himself stamp his facsimile signature to the warrant. That being true, the presumption is he had adopted the same as his signature and did stamp the warrant himself.
'The general rule is that the signature to a summons need not be in the handwriting of the person who is by law required to sign it; any signature, whether written, typewritten, stamped, printed, or lithographed, which the party issuing the summons may adopt as his own is considered to be a sufficient compliance with the requirement that such paper be signed.' 42 Am.Jur., Process, Section 11, page 13.
[54 TENNAPP 63] Defendant's third assignment has for its basis the constitutionality of both the ordinance and the fine or penalty imposed upon defendant.
It is insisted that both the ordinance in providing for a penalty of not more nor less than $100.00...
To continue reading
Request your trial
-
City of Chattanooga v Davis
...the actual purpose or effect of the monetary assessment is to serve as a punitive measure. To the extent that O'Dell v. City of Knoxville, 54 Tenn. App. 59, 388 S.W.2d 150 (1964), would compel a contrary conclusion, it is expressly We further hold that the assessment imposed by the Chattano......
-
City of Chattanooga v. Myers
...under the provisions of the State or Federal Constitutions. See Pass v. State, 181 Tenn. 613, 184 S.W.2d 1; O'Dell v. City of Knoxville, 54 Tenn. App. 59, 388 S.W.2d 150 (1964); Howard and Von Drake v. State, 143 Tenn. 539, 227 S.W. 36; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.......
-
Metropolitan Government of Nashville and Davidson County v. Miles
...relies upon the decisions of this Court in O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908); O'Dell v. City of Knoxville, 214 Tenn. 237, 379 S.W.2d 756 (1963). These cases do, indeed, support the contention of the Metropolitan Government that a proceeding for violation of a municip......
-
Lassiter v. Puckett
...a judge from adopting a version of his or her signature applied by a non-judicial officer. See, e.g., O'Dell v. City of Knoxville, 388 S.W.2d 150, 151-51 (Tenn. Ct. App. 1964), overruled on other grounds by City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001) (rejecting challenge to war......