Eller v. Richardson

• Decision Date: 29 January 1891
• Citation: 15 S.W. 650
• Parties: ELLER v. RICHARDSON.
• Court: Tennessee Supreme Court

Page 650

15 S.W. 650

ELLER v. RICHARDSON.

Supreme Court of Tennessee.

January 29, 1891.

Appeal from circuit court, Trousdale county; JOHN A. FITE, Judge.

Swope & Turner, for appellant. John S. McMurray, for appellee.

CALDWELL, J.

Action of debt, before a justice of the peace of Trousdale county, against a citizen of Moore county, on whom the warrant was served while temporarily in the former county. Judgment for plaintiff, and appeal to circuit court. Trial by circuit judge without a jury, and judgment again for plaintiff. Appeal in error, and assignment of errors by defendant below.

1. The plea to the jurisdiction of the person, filed by the defendant before the justice of the peace, was waived by the failure of the defendant to bring it to the attention of the circuit judge until after the commencement of the trial, and the introduction of all the plaintiff's proof and a part of the defendant's proof. It was properly stricken out in the court below, and cannot be relied on here, for the reason just stated.

2. Three or four depositions were taken by the plaintiff before a justice of the peace in Smith county. These were excepted to by the defendant on account of the omission of certain important statements from the caption and certificate. The exception being sustained by the clerk, appeal was taken to the court. At the trial term, on the motion of the plaintiff, he was permitted to bring the justice of the peace before whom the depositions were taken into open court, and there have him amend the caption and certificate, so as to show the real facts, by inserting the statement that his residence, at which the depositions were taken, was "in Smith county, Tenn.," and that he was "not interested in the cause." The depositions were then admitted as evidence. All of this was done over the objection of the defendant. It was sound and correct practice to permit the amendment to be made in the manner stated. Bewley v. Ottinger, 1 Heisk. 355; Carter v. Ewing, 1 Tenn. Ch. 214. It prevented unnecessary delay, saved the cost of retaking the depositions, and worked no injury to the defendant. The objection that the act of making the amendment was void, because done out of the county in which the justice of the peace resided, is not well taken. It was not the evidence of a judicial function on his part, but the performance of a purely ministerial act, — the correction of a clerical omission, which he could make as well out of his county as in it.

3. Pending the appeal in the circuit court, Richardson, the plaintiff, died intestate, and the suit was revived and prosecuted to judgment in the name of Charles Swope, as his administrator. The defendant filed a written plea, denying that Swope had been appointed administrator, and issue was joined on the plea. The trial judge properly found the issue in favor of the plaintiff. The letters of administration were at least prima facie evidence of the appointment; and, on the failure of the defendant to produce any contrary proof, the prima facie case of the plaintiff became conclusive.

4. Swope's letters of administration having been granted by the county court of Trousdale county, the defendant filed a plea, answering that they were void, because Richardson did not reside in Trousdale county, but was a citizen of Smith county, and died there. This plea was stricken out, as on demurrer. The action of the court was right. The grant...