Harvey v. Campbell

• Decision Date: 24 June 1933
• Citation: 61 S.W.2d 465,166 Tenn. 369
• Parties: HARVEY v. CAMPBELL.
• Court: Tennessee Supreme Court

61 S.W.2d 465

166 Tenn. 369

HARVEY v. CAMPBELL.

Supreme Court of Tennessee.

June 24, 1933

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by Joseph A. Campbell against E. C. Harvey and another, in which named defendant filed a cross-declaration. From an order granting plaintiff leave to enter a non-suit as to named defendant, the latter appeals.

Reversed and remanded.

John H Lechleiter, of Nashville, for plaintiff in error.

H. C Patterson, of Nashville, for defendant in error.

GREEN Chief Justice.

One Joseph A. Campbell brought suit against the Wherry Furniture Company, Inc., and against E. C. Harvey to recover damages for personal injuries by reason of an assault alleged to have been committed on Campbell by Harvey while the latter was in the employ of the Wherry Furniture Company. Process in this case was returnable to the October, 1931, term of the circuit court of Davidson county. The summons was returned apparently served on Wherry Furniture Company and Harvey both.

During the October term, a declaration was filed and counsel for the Wherry Furniture Company interposed a pleading for that concern and filed a plea of not guilty for Harvey. The October term of court finally adjourned on January 21, 1932.

On January 29, 1932, the defendant Harvey, by an attorney employed by him, filed a plea of not guilty in the case accompanied by a cross-declaration setting out that plaintiff Campbell was the assailant in the encounter mentioned in the declaration and seeking to recover damages against plaintiff Campbell. This cross-action was brought under section 8745 of the Code, which is 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."

At the February term of court the officer who had returned the original summons filed an affidavit and motion asking to be allowed to amend his return on that summons. The affidavit goes to show that, as a matter of fact, no service was ever had on Harvey. While it may be doubted if such an apparent impeachment of his return should have been heard, the court did hear the matter and ordered that the return on...