Fowlkes v. State
| Decision Date | 31 December 1884 |
| Citation | 82 Tenn. 14 |
| Parties | H. P. FOWLKES, Adm'r, et al., v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM WILLIAMSON.
Appeal in error from the Circuit Court of Williamson county. W. S. MCLEMORE, J.
TURLEY & SON for Fowlkes.
R. N. RICHARDSON for the State.
Action upon the bond of William Cummins as clerk of the county court, given by him as special commissioner. The bond being made payable to the State as required by law, the action is in the name of the State for the use of the parties claiming the recovery, being for funds received by Cummins as clerk, which he was ordered by the court to pay out to the parties entitled. The suit is against H. P. Fowlkes as administrator of William Cummins, who was then dead, and the sureties on his bond. The defendant sureties pleaded to the declaration nil debit upon which issue was joined, and the statute of limitations of six years. To the latter plea the beneficial plaintiffs replied, in substance, that they had, within six years of the accrual of their right of action, commenced suit by motion against the same defendants, on the same bond, and for the same subject matter, in the county court, which motion was finally dismissed by this court. Issue was joined on this replication in short thus: ““Rejoinder and issue.” The verdict and judgment were in favor of the plaintiffs, and defendants appealed in error. The Referees report that the judgment should be reversed upon the ground that the replication was fatally defective in failing to aver that the final dismissal of the former action was not upon the merits; and upon the further ground, that, in their opinion, the former adjudication was upon the merits, and a bar to the present action. The plaintiffs below except.
The replication sets out the proceedings in the suit by motion at length, and the record of the cause is introduced in evidence. A former judgment may be given in evidence under the general issue, as well as pleaded in bar, and is equally conclusive: Warwick v. Underwood, 3 Head, 238;Renkert v. Elliott, 11 Lea, 235, 250. As the case is presented to us by the report and the exceptions of the plaintiffs below, the litigation is narrowed down to the question whether the former adjudication was on the merits.
The record of the former suit shows, as set out in the replication and proof, that the beneficiary plaintiffs in this action did, within six years after their right accrued, make a motion in the county court against the present defendants, on the same bond, for the same subject matter, and recover judgment thereon; that the defendants afterwards carried the case into the circuit court for a re-trial by writs of certiorari and supersedeas; that these writs were, upon the motion of the plaintiffs, dismissed by the court, and the judgment of the county court affirmed; that the defendants appealed in error to this court, and, upon final hearings, it was adjudged by the court that: “There was error in the proceedings of the court below, and the same are reversed, and the motion entered by the plaintiffs below dismissed.”
The judgment of this court reverses the proceeding below, and of course leaves no adjudication in the lower courts to be relied on as a bar to the present action. And the judgment of this court is not a dismissal of the plaintiffs' cause of action, but of the motion. Looking alone to the language of the entry, “the dismission,” as said by this court in a somewhat similar case, “of the defendants was not general but limited to the motion”: Henderson v. King, 4 Hay., 94. But the very attitude of the case before this court shows that the dismission could not have been on the merits, for the obvious reason that the case was in no condition to be so decided. The appeal in error was from the judgment of the circuit court dismissing the writs of certiorari and supersedeas, by which the cause had been brought into the circuit court for re-trial. The proceedings of the county court on the merits were not before this court, for there was no appeal or writ of error from those proceedings. The motion itself might be...
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In re McIntire, No. 04-15864 (Bankr. E.D. Tenn. 4/14/2008)
...claim from the earlier litigation or resulted in a decision that was not on the merits. Estill v. Taul, 10 Tenn. 467 (1830); Fowlkes v. State, 82 Tenn. 14 (1884); Bank of Commerce v. State, 96 Tenn. 591, 36 S.W. 719 (1896); Patton v. Estate of Upchurch, 242 S.W.3d 781 (Tenn. Ct. App. 2007);......
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Mullins v. State
...has the burden of proof. State v. Scarbrough, 181 S.W.3d 650, 655 (Tenn. 2005); Dickerson v. Godfrey, 825 S.W.2d at 695; Fowlkes v. State, 82 Tenn. 14, 18-19 (1884). To prevail with a collateral estoppel claim, the party asserting it must demonstrate (1) that the issue to be precluded is id......
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Bige v. City of Etowah
...has the burden of proof. State v. Scarbrough, 181 S.W.3d 650, 655 (Tenn. 2005); Dickerson v. Godfrey, 825 S.W.2d at 695; Fowlkes v. State, 82 Tenn. 14, 18-19 (1884). To prevail with a collateral estoppel claim, the party asserting it must demonstrate (1) that the issue to be precluded is id......
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Strawter v. Mueller Co.
...has the burden of proof. State v. Scarbrough, 181 S.W.3d 650, 655 (Tenn. 2005); Dickerson v. Godfrey, 825 S.W.2d at 695; Fowlkes v. State, 82 Tenn. 14, 18-19 (1884). To prevail with a collateral estoppel claim, the party asserting it must demonstrate (1) that the issue to be precluded is id......