Moran v. Weinberger

• Citation: 260 S.W. 966,149 Tenn. 537
• Parties: MORAN v. WEINBERGER.
• Decision Date: 05 April 1924
• Court: Supreme Court of Tennessee

260 S.W. 966

149 Tenn. 537

MORAN v. WEINBERGER.

Supreme Court of Tennessee.

April 5, 1924

Certiorari to Court of Civil Appeals.

Suit by Margaret Moran against Maurice Weinberger. From a judgment of the Court of Civil Appeals affirming a judgment for defendant, plaintiff brings certiorari. Modified.

CHAMBLISS J.

Plaintiff brought her suit in a magistrate's court for personal injuries in November, 1920, and recovered judgment for $250. Defendant appealed to the circuit court, where various continuances were had. October 30, 1922, approximately two years after she had been injured by falling on defendant's stairway, plaintiff took a nonsuit, and shortly thereafter, and within one year, brought a suit for damages on account of the same injury in the circuit court for $10,000, basing her right so to do upon section 4446 Shannon's Code, reading as follows:

"If the action is commenced within the time limited but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may from time to time, commence a new action within one year after the reversal or arrest."

The trial court sustained a plea of the statute of limitations, being of opinion that the saving statute, supra, did not apply, and the Court of Civil Appeals has affirmed this judgment, holding: (a) That suits brought before justices of the peace are not within this statute; and (b) that this is particularly true of a new suit brought for an amount in excess of a magistrate's jurisdiction, which is limited to $500. These are the issues here presented.

The case of Maynard v. May, 2 Cold. 44, is relied on and followed by the learned Court of Civil Appeals, but we are not of opinion that this decision is controlling. It was section 4445, which, in the Maynard Case, the court held inapplicable to suits originally brought before a magistrate. Not only was it this section which was cited by the corresponding section number in Code of 1858, § 2754, but the reasoning of the opinion sustains this view. That section reads as follows:

"The suing out of a summons is the commencement of an action, within the meaning of this chapter, whether it be executed or not, if the action is duly prosecuted and continued by the issuance of alias process from term to term or recommenced within one year after the failure to execute."

The court was of opinion that reference to "issuance of alias process from term to term" evidenced an intention to have this section apply only to courts having regular terms, as have courts of record, but which is not true of justice courts. However, it does not follow that section 4446 is so limited. Both sections are grounded on Acts 1715, c. 27, and Acts 1819, c. 28, and the one immediately follows the other in the Code of 1858, but they are distinct, and the restrictive language relied on is found only in section 4445. The question, therefore, of the exclusion of proceedings in justice courts from the provisions of section 4446 is one of first intention, no direct determinative authority being before us. However, in at least two cases this court has indirectly recognized the applicability of this saving statute to justice courts. Nash v. Davis, 3 Tenn. Civ. App. 634 (disposed of in this court by denial of the writ of certiorari); Railroad v. Beasley, 123 Tenn. 629, 134 S.W. 306.

In neither of these cases was the applicability of this statute to justice courts challenged, but in both the suits had been originally brought before justices and rebrought under this statute.

Part 3 of the Code of 1858 deals with "The Redress of Civil Injuries," and title 1 relates to "Civil Actions." Under these general headings are found, first, chapter 1, "Of the Forms of Action," section 4444 reading:

" Proceedings before Justices of the Peace.--The general provisions of the Code, in regard to actions and their incidents, apply to proceedings before justices of the peace, unless controlled by the provisions designed expressly for such proceedings."

Next follows chapter 2, "Of the Limitation of Actions," and, first, comes section 4445, which has properly been held in Maynard v. May, supra, not to apply to proceedings before justices, it being construed "to contain expressions" which exclude such courts. But we find no provisions in the following section, 4446, indicative of a purpose to so confine its application, and this section would seem, therefore, to be governed by the express requirement above quoted that--

"The general provisions of the Code, in regard to actions and their incidents, apply to proceedings before justices of the peace."

Reference is made to the opening language of section 4445, "the suing out of a summons is the commencement of an action, within the meaning of this chapter," and it is insisted that this is a court of record process only, and that the words "within the meaning of this chapter" thus operate to restrict the provisions of succeeding sections in "this chapter" to courts issuing such process. But by Code, § 4518, c. 5, under title 1, dealing particularly with "Process," it is expressly provided as follows:

" Summons.--All civil actions at law, in courts of record or before justices of the peace, except otherwise provided, shall be commenced by summons."

Thus it would seem to be clear that the suggested limitation of the provisions of "this chapter" contained in section 4445, to cases in which the action is commenced by "the suing out of a summons," does not operate to exclude suits brought before justices.

As already indicated, there is no language in the section (4446) saving from the bar new suits brought within a year of dismissal, which excludes suits brought before justices of the peace from its operation, and, upon principle, considering the purpose underlying this enactment, we are unable to perceive any sound reason for such a distinction. The limitation statutes apply alike to the remedy, whether brought in courts of record or justices' courts. In either case alike the original suit must be brought within one year of the injury, and, if dismissed on a ground not concluding the right of action, the defendant is on notice that within a year a second suit may follow. Thus he is warned in one case, as in the other, to hold himself in readiness for this limited time to defend a new suit between the same parties in assertion of the same demands formerly made, and when so sued he will have available the same defenses as formerly. We are of opinion that, if the action is commenced by the suing out of a summons in a justice court within the time limited by the statute of limitation, and the judgment is rendered against the plaintiff upon any ground not concluding his right of action--and a voluntary nonsuit is held to be such a judgment--the plaintiff may within one year commence a new action, as if commenced in a court of record, the requirements of this statute being met in the one case as well as in the other.

This brings us to a consideration of the second phase of the issues presented--whether or not this new suit, brought for $10,000 in the circuit court, after a voluntary nonsuit, two years after the injury and the bringing of the original suit in a court with a jurisdiction limited to $500, but brought within one year of the taking of the nonsuit, is saved from the bar by this statute.

The statute is held to be remedial, and is to be liberally construed, but protection against the laches, negligences, or other fault of the plaintiff was no part of its purpose, nor was it intended to hold open the way indefinitely for vexatious and harassing continuation or renewal of litigation (Reed v. Railroad, 136 Tenn. 499, 190 S.W. 458; Anderson v. Bedford, 4 Cold. 464), nor, we are persuaded, to provide for a "new" suit to be commenced, long after the cause of action has originated and the statutory limit has expired, and the defendant has been lulled into indifference, in such a form as would not reasonably be covered by the notice given by the original suit of the grounds, purpose, and scope of the demand.

By this statute the remedy otherwise barred has been saved to the plaintiff by suspending the operation of the statute of limitations. "The act of limitations is a law of presumptions, it presumes evidence from length of time which cannot now be produced; payment which cannot now be proved," etc., as declared by Mr. Justice Haywood in an early case. Barton's Lessee v. Shall, Peck, 215. By analogy this has application to the statute under consideration, and suggests reasons why it should not be so extended as to deprive a defendant of defenses which by lapse of time he is presumed to have formerly had available. The principle of notice is involved. Upon notice to the defendant by suit commenced within one year the running of the statute of limitations is suspended; but it is suspended only to the extent of the notice thus directly given, or by law implied. The cause of action and the parties are fixed, the amount of the demand which the defendant may be called upon to meet being limited only by the jurisdiction invoked. But, if a jurisdiction is chosen which is limited, then it would seem to follow that the notice can be effective to stop the running of the statute only to the extent of the jurisdictional limit thus fixed. If one sues in a court of unlimited jurisdiction as to amount, he thus gives notice that his demand, however originally stated, may be indefinitely increased, and the defendant must beware. But, if he sues in a court of limited jurisdiction, then he affirmatively...