Gresham v. Ellis

• Decision Date: 18 April 1893
• Citation: 22 S.W. 1
• Parties: GRESHAM et al. v. ELLIS.
• Court: Tennessee Supreme Court

Page 1

22 S.W. 1

GRESHAM et al. v. ELLIS.

Supreme Court of Tennessee.

April 18, 1893.

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Replevin by A. B. Ellis against J. W. Gresham and another. A judgment in favor of plaintiff, rendered in a justice court, was affirmed by the circuit court, and afterwards set aside on motion of defendants. The order setting aside the judgment was set aside on plaintiff's motion, and defendants appeal. Appeal dismissed.

C. W. Heiskell, for appellants. G. W. Winford, for appellee.

WILKES, J.

This was an action of replevin brought by A. B. Ellis before a justice of the peace of Shelby county for the possession of certain horses and mules. The trial was had December 21, 1891, but the decision of the justice was not rendered until January 23, 1892, when he gave judgment for plaintiff. The defendants appealed to the circuit court of Shelby county, executing the necessary bond. The papers were not returned into court by the justice until the 22d of March, 1892; and on the 26th of March, 1892, the case being called for trial, the defendants made no appearance, and the judgment of the justice of the peace was affirmed. On the 7th day of May, 1892, a motion was made by defendants to set aside the judgment by default, and to reinstate the case for trial on its merits. To sustain this motion an affidavit of J. W. Gresham, one of the defendants, was presented to the court, in which was stated that, through the default of the justice of the peace, no counsel was marked upon the papers for the defendants, and that, when the case was called for trial in the circuit court, counsel for defendants was sick, and could not be present. This was the substance of the affidavit presented on the motion. In his assignment of errors in this court, defendants' counsel makes the further statement that he made the motion to set aside the judgment as soon as he was able to attend court, and, further, that at the time the cause was called for trial the defendant Gresham was absent from the state. These facts, however, do not appear to have been stated in the affidavit. Upon argument, the motion to set aside the judgment by default was sustained, and the cause was reinstated for a new trial. At a subsequent term of the court, and on the 28th September, 1892, the case came on for trial, when the plaintiff's attorney moved the court to set aside the order of May 7, 1892, and to leave the final judgment of March 26, 1892, in force and effect. On argument this motion was granted, and the original final decree of March 26, 1892, was reinstated, in full force and...