Harper v. Turner

• Court: Tennessee Supreme Court
• Writing for the Court: McALISTER, J.
• Citation: Harper v. Turner, 50 S.W. 755, 101 Tenn. 686 (Tenn. 1899)
• Decision Date: 25 January 1899
• Parties: HARPER v. TURNER.

50 S.W. 755

101 Tenn. 686

HARPER v. TURNER.

Supreme Court of Tennessee.

January 25, 1899

Error to circuit court, Rutherford county; W. C. Houston, Judge.

Action between one Harper and one Turner, administrator. From a judgment for plaintiff, defendant brings error. Modified.

McLemore & Richardson, for plaintiff in error.

Brown & Lytle, for defendant in error.

McALISTER J.

Suit by original attachment before a justice of the peace to enforce a landlord's lien on his tenant's crop for rents. Summons was issued at the same time, and served upon the tenant. Judgment was pronounced by the justice of the peace in favor of plaintiff, and sale of crop ordered. Defendant appealed, and in the circuit court moved to quash the writ of attachment, upon several grounds, and, among others, that the writ did not run in the name of the state, as required by the constitution. On motion of plaintiff, the court permitted the attachment to be amended in the respects complained of.

This action of the court is now assigned as error. The contention of defendant is that the writ was void, because it did not run in the name of the state, as required by the constitution, and it was not amendable in this respect. This position is well taken. By the common law, process was not amendable where it appeared upon the face of it that it was void. If the process was not a nullity, the old rule was that an amendment would be allowed where there was anything to amend by. 1 Enc. Pl. & Prac. p. 658. In Mayor, etc., v Pearl, 11 Humph. 249, it was held that the provisions of the state constitution that all writs and other process shall run in the name of the state of Tennessee...