Fort v. Noe

• Decision Date: 24 November 1920
• Citation: 233 S.W. 516,144 Tenn. 337
• Parties: FORT ET AL. v. NOE.
• Court: Tennessee Supreme Court

233 S.W. 516

144 Tenn. 337

FORT ET AL. v. NOE.

Supreme Court of Tennessee.

November 24, 1920

Certiorari to Court of Civil Appeals.

Action by C. H. Fort and another against R. F. Noe. Judgment of dismissal on appeal from judgment for plaintiffs by a justice of the peace, and defendants appealed to the Court of Civil Appeals. Case remanded for new trial, and plaintiffs bring certiorari. Judgment of Court of Civil Appeals reversed, and judgment for plaintiffs, rendered by a justice of the peace affirmed.

John R King, of Morristown, for plaintiffs in error.

W. N Hickey, of Morristown, for defendant in error.

SMITH Special Justice.

This action was commenced before a justice of the peace by the plaintiffs, Fort Bros., to recover of the defendant, Noe, on account, for cash overpaid on a timber contract. The justice of the peace rendered judgment in favor of the plaintiffs and against the defendant in the sum of $158.78. From this judgment the defendant appealed to the circuit court upon the pauper's oath. Before the trial in the circuit court the plaintiffs moved to dismiss the defendant's appeal, on the ground that the defendant had falsely and fraudulently taken and filed the pauper's oath, and upon this motion the testimony of disinterested witnesses was introduced, which showed that at the time the pauper's oath was taken and filed the defendant owned personal and real property of the value of more than $5,000. The circuit judge, after hearing this evidence, overruled the motion. Exception to the action of the court was taken at the time, and properly preserved by bill of exceptions.

On the hearing of the case upon its merits before the jury a verdict was rendered in favor of the defendant, upon which judgment dismissing plaintiffs' suit was pronounced. The plaintiffs appealed to the Court of Civil Appeals.

One assignment of error in the Court of Civil Appeals was that there was no evidence to sustain the verdict. This assignment was properly overruled.

Other assignments of error were directed at the charge of the court to the jury, and these assignments were properly sustained.

There was an assignment to the effect that the court erred in not dismissing the appeal of the defendant from the justice of the peace. This assignment was overruled.

The action of the court in holding that there was error in the charge of the trial judge and remanding the case for a new trial is not brought into question in this court, as no petition for certiorari has been filed by the defendant. But the action of the court in overruling the assignment based upon the action of the trial judge in refusing to dismiss the defendant's appeal from the justice of the peace is challenged by the plaintiffs, a petition for certiorari having been filed by them in this court.

So the only question is whether or not the circuit judge should have dismissed the defendant's appeal from the justice of the peace. If he should, then the Court of Civil Appeals ought to have rendered judgment affirming the judgment of the justice of the peace, instead of remanding the case for a new trial.

The question turns upon the proper construction of section 3194 of the Code of Tennessee, carried into Shannon's Code at section 4932, which reads as follows:

"If it be made to appear to the court, at any time before the trial, by the testimony of disinterested persons, that the allegation of poverty is probably untrue, or the cause of action frivolous or malicious, the action may be dismissed."

The contention of the plaintiffs is that the word "may" in this statute is to be read as "shall," and that inasmuch as the proof showed the pauper's oath filed by the defendant to be false, the circuit judge had no discretion under this statute. On the other hand it is contended that by the use of the word "may" in the statute the Legislature intended merely to confer a...