Duane v. Richardson

• Decision Date: 17 November 1900
• Citation: 59 S.W. 135,106 Tenn. 80
• Parties: DUANE et al. v. RICHARDSON.
• Court: Tennessee Supreme Court

59 S.W. 135

106 Tenn. 80

DUANE et al. v. RICHARDSON.

Supreme Court of Tennessee.

November 17, 1900

Appeal from circuit court, Carter county; H. T. Campbell, Judge.

Action by J. J. Duane & Co. against H. P. Richardson. Judgment for defendant, and plaintiffs appeal. Reversed.

Boren Folsom & Edens and Tipton & Miller, for appellants.

Simerly & Allen, for appellee.

WILKES J.

This is an action of replevin commenced before a justice of the peace. It comes to this court by appeal of the plaintiffs from a judgment against them in favor of the defendant dismissing their suit. A motion is made in this court to dismiss the appeal upon the ground that the cause was tried before the court and a jury, and oral evidence was introduced, and the jury was charged by the court, but no bill of exceptions was made, as appears in the transcript setting out the evidence and charge. This motion is not well made, and is overruled. A party may appeal from the decision of the court below without making any bill of exceptions whatever. In such case nothing that should be included in a bill of exceptions can be looked to in this court, but the process, pleadings, minute entries, verdict, and judgment are matters properly constituting a perfect record in the absence of a bill of exceptions, and can be reviewed, though there may be no bill of exceptions made, or filed, or incorporated in the transcript. Caruth. Lawsuit, p. 334, § 279.

It appears from the transcript that the justice's warrant was returned for trial in the civil district where the plaintiffs resided, and not in the district where the defendant lived, or the property was found. The defendant filed a plea in abatement alleging these facts, which was properly sworn to. Thereupon the plaintiffs, without replying to the plea, moved the court to certify the papers in the cause for trial before some justice of the peace of the district where the defendant resided, or where the property was found. This motion was resisted by the defendant, and thereupon the justice considered the motion and plea at the same time, and overruled both, and heard the case on the merits, and gave judgment for the plaintiffs for the property and costs. The defendant thereupon appealed to the circuit court, where the case was submitted to a jury "upon the issues joined," as the record recites, and the jury returned a verdict that "they found the issue upon the plea in favor of the defendant, and that the plea in abatement is good, and sustained the same." There was no trial or verdict on the merits of the case as appears from the...