Miller v. Koger

Decision Date30 September 1848
Citation28 Tenn. 231
PartiesMILLER v. KOGER.
CourtTennessee Supreme Court
OPINION TEXT STARTS HERE

Koger brought an action of trover in the circuit court of Campbell county, against Miller and Carroll, for the value of two horses. There was a plea of not guilty, and issue thereupon.

At the May term, 1847, the following entry was made:

“The death of Samuel Carroll is suggested to the court, and that he hath no executor or administrator, and the plaintiff by attorney elects to proceed against Russell.”

At the May term, 1848, the issue was submitted to a jury by the presiding judge, R. M. Anderson.

It appeared that Miller had a judgment and execution against Koger, and that the execution was levied on two horses belonging to Koger; that they were sold, and Miller became the purchaser at a nominal price; and that after sale Miller said to Koger that, if Koger would pay him the amount of his execution in specie, or its equivalent, in eleven days he would surrender the horses. To this proposition Koger acceded. There was much testimony as to the payment of the money according to the agreement. Miller retained the horses, Koger demanded them, and Miller refused to deliver them.

In the progress of the trial the plaintiff offered to read a subpoena, with the return of its service on James Miller. This was objected to, and the objection was overruled on the ground that the subpoena was a part of the record, and might well be read.

The judge charged the jury that, “if Miller, after he had purchased the horses at the execution sale, agreed with Koger that he might redeem or repurchase said horses at a certain price, and that Koger paid that price to Miller, and Miller refused to surrender them to the plaintiff, the plaintiff was entitled to recover the value of them.”

There was a verdict and judgment for the plaintiff for their value.

In making up the bill of exceptions the attorneys of the parties differed as to the statements of a witness. The witness was absent. “The defendant's attorney made affidavit that he was satisfied that the testimony was as he contended, and moved the court thereupon that the motion for a new trial should be continued, or that they should delay the further taking of the bill of exceptions until the witness might be procured.”

The court overruled this motion on the ground of the lateness of the period of time at which it was made, “and refused to allow said important testimony to be incorporated in the bill of exceptions, and the same was erased and excluded therefrom.” The defendant appealed.

Sneed, for plaintiff in error.

This cause was instituted against two defendants, and after it had been a great while pending, the death of one was suggested, and that he had no personal representative; and the plaintiff elected to proceed against the survivor, who is plaintiff in error, and had verdict and judgment rendered against him.

1. There is error in trial and judgment against one before an abatement as to deceased defendant. The act of 1825 requires the court to be satisfied of the truth of the suggestion of death and no representative, and this should appear of record. But this act does not apply to actions of tort, and, if not, then there is no pretence for the course adopted.

2. The court allowed the plaintiff below, after the objection, to read a subpoena for a witness, and the return thereon as evidence to the jury as part of the record.

3. The court refused to continue motion for a new trial, or to wait before making up bill of exceptions, so as to set out the testimony truly.

4. The court charged the jury that, after the title was vested in defendant below by execution sale, if he agreed with defendant in execution to allow him to redeem or repurchase, and the money was paid in redemption, and then a demand and refusal to deliver the property, that plaintiff below would be entitled to maintain trover. In the above points the court erred.

5. The court should have granted a new trial because the verdict was against evidence.

H. Maynard, for defendant in error.

1. The proof in this cause warrants the verdict.

2. There is no error in the charge of the court. The case in Martin & Yerger, Jamison v. Hawkins, has nothing to do with the present case. That case only gives a construction to the Redemption Law (act of 1820, ch. 11), and decides that, before the debtor can avail himself of his title after redeeming, there must be, according to the terms of the act, a reconveyance from the purchaser.

3. There was no error in the judge's refusing, against his own recollection of the case, to incorporate into the bill of exceptions what the defendant's counsel deemed a very important part of Williamson's testimony. In certifying the evidence the judge must necessarily rely upon his own memory, aided by his notes. And, if there was error, it could only be corrected by a writ of mandamus, ordering him to certify a more perfect bill of exceptions.

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

Several exceptions to the regularity of the proceedings in this case in the court below are taken by the plaintiff in error, and for which a reversal of the judgment is asked at the hands of this court. 1st, the death of one of the defendants was suggested, and that he had no personal representative, whereupon the defendant elected to proceed against the survivor. It is alleged that there is error in this, because the order allowing the proceeding does not show that the court was satisfied of the truth of the facts suggested. We do not think that there is any error in this. The order need not show that the court was satisfied of the truth of the facts suggested. It is sufficient that the facts are suggested, and upon such suggestion the plaintiff may...

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4 cases
  • Shelton v. Hickman
    • United States
    • Tennessee Court of Appeals
    • March 13, 1943
    ... ... of exceptions is not error in this cause. Plaintiff's ... remedy was by mandamus. McCallen v. Sterling, 5 ... Yerg. 223, 13 Tenn. 223; Miller v. Koger, 9 ... Humph. 231, 28 Tenn. 231; Mallon v. Tucker ... Manufacturing Co., 75 Lea 62, 75 Tenn. 62; Collier ... v. City of Memphis, 4 ... ...
  • Shelton v. Hickman
    • United States
    • Tennessee Supreme Court
    • March 13, 1943
    ...is not error in this cause. Plaintiff's remedy was by mandamus. McCallen v. Sterling, 5 Yerg. 223, 13 Tenn. 223; Miller v. Koger, 9 Humph. 231, 28 Tenn. 231; Mallon v. Tucker Manufacturing Co., 75 Lea 62, 75 Tenn. 62; Collier v. City of Memphis, 4 Tenn.App. 322; Kelly v. Cannon, 22 Tenn.App......
  • Green v. State
    • United States
    • Tennessee Supreme Court
    • December 11, 1948
    ... ... to apply to this Court for the issuance of a writ of mandamus ... to compel his signature. Miller" v. Koger, 28 Tenn ... 231, 236; State ex rel. v. Hall, 43 Tenn. 255; ... Caruthers History of a Lawsuit, 3rd Edition, section 285 ...      \xC2" ... ...
  • Green v. State
    • United States
    • Tennessee Supreme Court
    • December 11, 1948
    ...the bill of exceptions may be filed, is to apply to this Court for the issuance of a writ of mandamus to compel his signature. Miller v. Koger, 28 Tenn. 231, 236; State ex rel. v. Hall, 43 Tenn. 255; Caruthers History of a Lawsuit, 3rd Edition, section When the plaintiff in error has been d......

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