Hilton v. Dan'l Miller & Co.
| Decision Date | 30 September 1880 |
| Citation | 73 Tenn. 395 |
| Parties | DAVID S. HILTON v. DAN'L MILLER & CO. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM CARTER.
Appeal from the Chancery Court at Elizabethtown. H. C. SMITH, Ch.
J. R. FLETCHER for complainant.
H. M. FOLSOM for defendants.
On the 30th of January, 1872, defendants obtained judgment against complainant for $293.50. This judgment was rendered, on confession, by one Burrow, an acting justice of the peace of Carter county, whose wife was a niece of Hilton. A warrant was issued by said Burrow on the case, returnable before himself or some other justice, service of which was acknowledged by Hilton on the 30th of January, 1872; and on the same day, and in the same entry of acknowledgment of service, he confessed judgment before said Burrow for $293.50, in writing, signed by him, whereupon judgment for that sum was entered by the justice upon the warrant. Upon this judgment execution was issued and levied upon a house and lot, and the papers having been returned into the circuit court of said county, the house and lot were ordered to be sold, and were sold, plaintiff in the execution becoming the purchaser. After the time of redemption had expired, Hilton surrendered possession to the purchasers, they having taken a sheriff's deed for the property, and from that time until the filing of the bill in this case (January, 1879) Miller & Co. have remained in the undisturbed possession of the property.
The bill is filed to have declared void the judgment and subsequent proceedings had thereon, upon the ground that the justice who rendered the judgment had no jurisdiction to do so, because of the relationship of his wife to the complainant against whom the judgment was rendered.
Undoubtedly the statutes prohibiting a judicial officer from trying cases of his relatives are wise and salutary. They are made for the protection of parties against that natural partiality which is almost universally entertained by men for their near kindred. But parties may waive objections of this character to the competency of a judge or justice of the peace. And this waiver, it has been held, may be express or by necessary implication. 2 Swan, 172. And, in a recent case, it was held by this court that “the circuit court erred in reversing the action of the county court because of relationship within the prohibited degree of the chairman of said court,” no objection having been taken “to the...
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Dupuis v. Hand
...first time on appeal; the objection should come before trial is had on the merits. See Rowe v. Greer, 32 Tenn. 172 (1852); Hilton v. Miller & Co., 73 Tenn. 395 (1880); Obion County ex rel. Houser Creek Drainage District v. Coulter, 153 Tenn. 469, 284 S.W. 372 (1926). Moreover, Tenn.Code Ann......
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