Mabry v. Baxter

• Decision Date: 30 September 1872
• Citation: 58 Tenn. 682
• Parties: Mabry v. Baxter.
• Court: Tennessee Supreme Court

58 Tenn. 682

Mabry

v.Baxter.

Supreme Court of Tennessee.

September Term, 1872.

FROM KNOX.

Appeal in error from the Circuit Court of Knox, February Term, 1872. E. T. HALL, J.

CROZIER, ANDREWS & CALDWELL, for Mabry.

BAXTER & CHAMPION, for Defendant.

NICHOLSON, C. J., delivered the opinion of the Court.

Baxter sued Mabry, Griffith and others in the Circuit Court of Knox county, for damages to his character, on account of a libellous publication. The original writ was executed on Mabry, who resided in Knox, and counterparts were served on Griffith and others, who resided in Davidson county. Declaration was filed at the appearance term and Mabry pleaded not guilty--the other defendants jointly filed the same plea--on both of which there was issue. While the cause was thus at issue and ready for trial, the Legislature, on the 11th of December, 1871, passed an Act, by which it was enacted, “that in all such suits that may hereafter be instituted, or that may be now pending in any of the courts of the State, each defendant therein, at any time before trial or final judgment, shall have the right, upon motion, to sever and have the suit as to himself separately tried, and the causes after such severance shall stand as against each defendant in all respects as if originally instituted separately against him or them, and without regard to the proceedings that may have been had in the cause before severance; and each defendant, after severance, shall be entitled to make his defense and upon all grounds by answer, motion, plea or demurrer.”

By the second section, “in all causes now pending or that may hereafter be instituted, wherein any one or more of the defendants thereto shall avail themselves of the right to sever, any defendant so severing, who may have been, at the commencement of the suit, a resident of any other county of the State, shall be entitled to have the same, as to himself, removed to the county of his residence--the removal shall be ordered upon the written application of the party desiring it--the application shall set forth the name of the county wherein the petitioner resides and shall ask for the removal, as to himself, to a like court of said county, then to be proceeded with as if originally instituted there.”

At the February Term, 1872, all the defendants, except Mabry, severally petitioned and moved for severance, and for removal of the cause to the county of their residence. This motion was disallowed and the petition dismissed, and the defendants so applying have appealed, as authorized by the 4th section of said Act. The question is, whether the Circuit Judge erred in refusing the motion to sever and transfer the cause. It is not denied that the petitioners brought themselves within the provisions of the Act and were entitled to the severance and transfer, if the Act of the Legislature was constitutionally passed.

As to the prospective future of the Act, no exception is taken so far as its constitutionality is involved; but the question is, whether the provisions of the Act, in so far as they apply to suits then pending, so interfere with the rights of the plaintiff in this case as to render the Act void on account of want of power in the Legislature to enact it?

It is clear that the right to sue for injuries to character is secured to any citizen, and the State is bound to provide the necessary courts and to keep them open, that this right may be freely exercised and enjoyed. When the plaintiff instituted his suit in this case he was in the exercise of a constitutional right, and the law then in force furnished him the means of prosecuting his right through the Circuit Court of Knox county, in which one of the defendants resided.

The law also authorized him to unite in his suit the other defendants, who resided in a different county, and to bring them all by means of counterpart writs to the county of Knox. The law gave him the remedy of a joint action against all defendants and provided the means by which his right to a joint action might be effectuated. He had availed himself of this right and of the remedy provided, and had brought all the defendants into the Circuit Court of Knox county, and they had there appeared and made up the issue in the suit. The law authorized the defendants to make separate or joint defense. All of them, except Mabry, elected to unite in a joint plea of not guilty--Mabry elected to plead separately.

If the cause had come to a trial, each of the defendants would have had the right to apply for a severance and a separate trial, and upon good cause shown the presiding judge in his discretion would have allowed the application. A severance and separate trial would not have been a matter of right but a matter for the sound discretion of the court, exercised upon the merits of the application. The right to severance, however, upon good cause shown, does not involve the right to a change of venue to the county of the residence of the defendant. That is a new right conferred by the Act in question. If the suit had been tried on the issue made up, the jury would have acquitted some of the defendants, and found others guilty, and they would have assessed separate and different amounts of damages against the several defendants found guilty. Upon a verdict finding different amounts of damages against different defendants, the plaintiff could have satisfaction only as to one amount, and it would have been in his election as to which amount, and by which defendant he would have satisfaction.

Such were the relative rights and remedies of the parties to the suit when the Act under consideration was passed. The question recurs: Are the alterations made by that Act, affecting their rights and remedies, such as to bring the Act into conflict with the fundamental law? We recognize the rule of law as to the alteration of remedies, as laid down by Dwarris on Statutes, 472, as sound, viz: “Whatever belongs merely to the remedy may be altered according to the will of the State, always provided the alteration does not impair the obligation of the contract; but if a statute so change the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just so much a violation of constitutional provisions, as if it directly overturned his rights and interests. If the remedy does not impair the right or property itself; if it still leaves the party a substantial remedy according to the course of justice as the right existed at the time of the passage of the statute; it does not impair the obligation of the contract, nor will it be held to do so, merely because the new remedy is less efficient, less speedy, or less convenient than the old one.”

It is observed that this rule is laid down with special reference to the alteration of remedies which affect the rights growing out of contracts and the interests secured by the obligations thereof. But the right to obtain damages for injury to reputation stands upon the same ground with rights as to property, and therefore the rule may be received as applicable to alterations of the existing remedies for obtaining satisfaction for injured reputation as well as in cases where property dependent upon contract is involved. The rule then by which we are to determine whether the Act is constitutional or not, is does it still leave the plaintiff a substantial remedy, according to the course of justice, as the right existed at the time of the passage of the statute?

We have seen that while the Act of Assembly secures to the plaintiff his right to prosecute his suit to final judgment against all the defendants and in a court having the same jurisdiction in which his suit was brought, and in those respects secures to him a substantial remedy, yet that it necessarily subjects him to delay, inconvenience and expense in the final adjudication of his rights. It is laid down in the authority quoted, that it will not be held that the rights of the plaintiff are impaired, merely because the new remedy is less efficient, less speedy, or less convenient than the old one. But it will be observed that by the same authority it is said, that the Act “must leave the party a substantial remedy according to the course of justice, as the right existed at the time of the passage of the statute.” Interpreting the whole extract from Dwarris together, we understand it to mean, that while the new remedy may be less efficient, less speedy and less convenient than the old, yet the statute providing the new remedy will not be unconstitutional, if it provides a substantial remedy according to the course of justice, as the right existed at the time of the passage of the Act. It would follow, that where the right exists when the new remedy is prescribed, but no suit has been brought to enforce it, then the new remedy would not be unconstitutional, because less efficient, less speedy or less convenient, than the old one in force when the right accrued. But where the plaintiff has commenced his suit, in accordance with existing laws as to remedy, if a statute is then passed changing the remedy, it must be substantially the same as that in force when his suit was commenced.

The question then would be, is the remedy provided by the Act in question substantially the same as that in force when the suit was instituted?

We have already pointed out the alterations made in the remedy by the statute--it deprives the plaintiff of his remedy by joint judgment against all the defendants, at the election of each of the defendants, without regard to the discretion of the presiding judge; it confers upon each defendant the absolute right to a severance, on motion, and thereby necessarily takes from the plaintiff any right to object and from the judge any discretion as to allowing the motion; it sets aside the pleas filed and gives to each defendant the right to plead de novo; it gives to each defendant the absolute right,...