Harbison v. Welch

• Decision Date: 06 March 1953
• Parties: , 195 Tenn. 191 HARBISON v. WELCH. HISCOCK v. WELCH.
• Court: Tennessee Supreme Court

Page 755

258 S.W.2d 755

31 Beeler 191, 195 Tenn. 191

HARBISON v. WELCH.

HISCOCK v. WELCH.

Supreme Court of Tennessee.

March 6, 1953.

Petition to Rehear Denied April 25, 1953.

Hodges & Doughty and Anderson & Snepp, Knoxville, for appellants.

E. A. Langford, Cookeville, John W. Gill, Monterey, for appellee.

NEIL, Chief Justice.

Walter Robert Harbison and Betty Ruth Hiscock brought separate suits for damages in the Circuit Court of Putnam County against Mrs. A. P. Welch. The plaintiffs are residents of Knox County, Tennessee, while the defendant is a resident of Putnam County. The summons in each of these cases recited that the defendant was required to appear on a day certain in the Circuit Court 'then and there to answer the plaintiffs in an action for damages for personal injuries' etc. Each of these writs was served upon the defendant on May 3, 1952, the day following issuance by the Clerk of the Circuit Court.

On the same day Mrs. Welch caused to be issued by the Clerk a summons addressed 'To the Sheriff of Knox County' (Tennessee) commanding 'Betty Ruth Hiscock to appear in person or by attorney * * * on the fourth Monday of July next then and there to answer Mrs. A. P. (Daisy) Welch in a cross-action for damages.' There was filed a certified copy of a cross-declaration attached to the summons, to be served upon the plaintiff Hiscock. The summons and the alleged cross-declaration was so served by the Sheriff of Knox County.

The substance of the cross-declaration is that her claim for damages rises out of an automobile accident which resulted in her personal injury and growing out of the same act and accident upon which Betty Ruth Hiscock has brought suit against cross-complainant in the Circuit Court of Putnam County on May 2, 1952.

A similar summons was issued against Harbison and a certified copy of a cross-declaration, attached thereto, was issued to the Sheriff of Knox County and served by him as in the Hiscock case.

Neither of the original plaintiffs had filed a declaration at the time their respective summons were issued and served upon the defendant; and none had been filed at the time the appeal was prayed and granted to this Court.

The original plaintiff, Harbison and Hiscock, filed identical pleas in abatement to the cases brought by Mrs. Welch, attacking the issuance of process by the Clerk of the Putnam County Circuit Court and directed to the Sheriff of Knox County, Tennessee, because 'invalid, illegal and void as a cross-action authorized by law.'

Counsel for Mrs. Welch filed motions to strike and dismiss the pleas in abatement on the ground that the same 'were not good in either law or fact.' The motions were treated and considered by the trial court as demurrers to the pleas in abatement. The said motions to strike were overruled and the pleas in abatement were sustained, it being held that the summons in each case, addressed to the Knox County Sheriff, were issued without authority in law and void.

The motion to strike the pleas in abatement to the cross-declarations (the same being treated as a demurrer) was overruled. An appeal was prayed and granted to this Court.

The assignments of error complain in substance 'that the lower court erred in not sustaining the pleas in abatement in their entirety.'

'The court should have held the filing and attempted service of purported 'cross-declarations' to be illegal and void for all purposes, not only as cross-actions, but original actions, and should have further held that the Circuit Court of Putnam County did not obtain jurisdiction of the plaintiffs-in-error, who were residents of Knox County, Tennessee, by such attempted procedure.'

Counsel for the appellee, Mrs. Welch, moves the Court to dismiss the appeal on the ground that it is not from a final judgment.

We have repeatedly held that there is no right of appeal from a judgment that is not final in the Circuit Court; that appeals from an interlocutory decree lie only from the Chancery Court and are within the discretion of the Chancellor.

The appellants in response to the motion rely upon Moore v. Gore, 191 Tenn. 14, 231 S.W.2d 361, 363 to sustain their right of appeal. That case involved a plea in abatement to the jurisdiction of the court. An appeal was granted and sustained by this Court upon te theory that 'the factual issue presented by the pleas in abatement abated the lawsuit'; that being true it was a final judgment.

The appeal in the case at bar is not from a final judgment. In other words the ruling of the learned trial judge quashing the summons in each of these cases did not result in the dismissal of Mrs. Welch's cross-action. The right of the defendant to a judgment on her 'purported cross-declaration' is still pending in the trial court. There is not as yet any adjudication by the lower court that her cross-action is not in conformity with the provisions of Code Section 8745, which reads as follows:

'In any action for tort where the defendant claims a cause of action, against the suing plaintiffs, or any of them, growing out of the same act, accident or transaction (such, for example, as collision of vehicles, the defendant may, along with his pleas and within the time limit allowed therefor, and in no case later than the issue term, file a cross-declaration setting forth his cause of action, upon his executing a bond for costs, or otherwise complying with the law in lieu thereof.'

The summons in the cases at bar and issued to the Knox County Sheriff are clearly void and of no effect. Nunn v. Walker, 186 Tenn. 685, 212 S.W.2d 665. The above quoted Code Section does not require the issuance of any counter-summons by a defendant in a cross-action. The for the reason that the plaintiff is already in court. But the quashing of the summons does not have the effect of dismissing the cross-action.

But it is urged upon us that if we strictly construe the statute there can be no...