Mallon v. Tucker Manufact'ng Co.

• Decision Date: 30 April 1881
• Citation: 75 Tenn. 62
• Parties: PHIL. J. MALLON v. THE TUCKER MANUFACT'NG CO.
• Court: Tennessee Supreme Court

75 Tenn. 62

PHIL. J. MALLON

v.THE TUCKER MANUFACT'NG CO.

Supreme Court of Tennessee.

April Term, 1881.

FROM SHELBY.

Appeal in error from the Circuit Court of Shelby county.C. W. HEISKELL, J.

W. W. GOODWIN for Mallon.

WEATHERFORD & HEISKELL for Manufacturing Co.

MCFARLAND, J., delivered the opinion of the court.

This action was commenced before a justice of the peace by “The Tucker Manufacturing Co.” against Phil. J. Mallon, upon a promissory note.Upon appeal, the cause was tried by the circuit judge, and the judgment of the justice in favor of the plaintiff affirmed on the 16th of October, 1877.During the same term of the court, to-wit, on the 9th of December, the defendant presented to the judge a bill of exceptions, which he asked to have signed and sealed and made part of the record.The record shows that the judge refused to sign it as a bill of exceptions because it was not presented in accordance with Rule 7 of the court, to the effect that bills of exceptions should be presented for the signature of the judge within fifteen days after the verdict of the jury in jury cases, or judgment of the court in non-jury cases, otherwise the judge would refuse his signature unless the bill of exceptions be agreed to by both parties.The judge, however, did sign the paper presented, as it states, for the purpose of enabling counsel to present the question as to the legality of the refusal of the court without the expense of a mandamus proceeding.The defendant thereupon appealed in error.

We will not undertake to say, even if the judge below erred in refusing to sign the bill of exceptions presented, that this would be ground for reversing the judgment and awarding a new trial.The remedy would be to compel the judge to sign the bill of exceptions, and then the proceedings might be reviewed and reversed if erroneous.That the judge improperly refused to sign the bill of exceptions, would not be an error effecting the judgment.We may, furthermore, very readily dispose of this case by holding that if the so-called bill of exceptions be regarded as part of the record, there is no error whatever in the proceeding.All that appears is that the defendant, Phil. J. Mallon, by attorney, moved the court to dismiss the cause because the summons had not been executed upon any member of the firm of Phil. J. Mallon & Co., the return being “executed on Phil. J. Mallon of the firm of Phil. J. Mallon & Co.”This motion was overruled.The said Mallon offered a plea in abatement, averring that, according to the best of his knowledge, recollection and belief, the summons was not executed upon him or any member of the firm.This plea was refused, and the court, upon the motion of the plaintiff's attorney, ordered that the officer be allowed to amend his return, and thereupon during a recess of the court and in the absence of defendant and his attorney, the officer made an affidavit before the clerk that he executed the process upon “Phil. J. Mallon,” and the court allowed the return to be amended accordingly, so as to show that the summons was executed upon “Phil. J. Mallon of the firm of Phil. J. Mallon & Co.”Four days afterwards the cause was again called, in the absence of the defendant or his attorney, and judgment rendered for the plaintiff.

These are all the matters presented in the bill of exceptions, and it is manifest that if it be regarded as part of the record, it contains no error.The warrant of the justice does not specify the name of any person as defendant...