Nunn v. Walker

• Decision Date: 12 June 1948
• Citation: 212 S.W.2d 665,186 Tenn. 685
• Parties: NUNN et al. v. WALKER (two cases).
• Court: Tennessee Supreme Court

212 S.W.2d 665

186 Tenn. 685

NUNN et al. v. WALKER (two cases).

Supreme Court of Tennessee.

June 12, 1948

Error to Circuit Court, Lauderdale County; R. A. Elkins, Judge.

Action for wrongful death by Thomas J. Walker, Administrator against Stewart Lewis Nunn and J. R. Lewis wherein J. R Lewis filed a cross-action for damages for personal injuries sustained by his wife and action for personal injuries by Mrs. Nell Avery Walker against Stewart Lewis Nunn and J. R Lewis wherein each defendant filed a cross-action for personal injuries and for personal injuries to wife respectively. Certain judgments were entered against cross-plaintiffs and they bring error.

Assignments of error overruled and judgments affirmed.

Thomas Steele, James T. Haynes and C. S. Carney all of Ripley, and E. T. Palmer, of Dyersburg, for plaintiffs in error.

John M. Drane, of Newbern, and W. C. Patton, of Halls, for defendants in error.

GAILOR Justice.

This litigation rises from an automobile collision which occurred at the intersection of State Highways 20 and 51 in Dyer County on September 2, 1946. At the time of the collision, Mrs. Nell Avery Walker, with her husband, C. M. Walker, as a passenger, was driving his car north on Highway 51. C. M. Walker was killed in the accident and Thomas J. Walker has been appointed his administrator. The Walkers are residents of Dyer County. According to the declarations, the other car involved was owned by J. R. Lewis and being driven at the time of the collision by his minor grandson, Stewart Lewis Nunn. Both Lewis and Nunn are residents of Lauderdale County.

The declaration in the case of Nell Avery Walker v. Nunn and Lewis seeks damages for personal injuries to the Plaintiff, and the declaration in the case of the Administrator v. the same parties seeks damages for the wrongful death of C. M. Walker. The original summons in each of these cases was issued August 16, 1947, and served 'by accepting service' on September 2, 1947.

In connection with the aforesaid collision of automobiles, on September 2, 1947, the Clerk of the Circuit Court of Lauderdale County issued two summonses against Mrs. Nell Avery Walker, which purported to require her to appear in the Circuit Court of Lauderdale County, and answer (1) J. R. Lewis in a cross-action for personal injuries to his wife rising out of the automobile collision, and (2) Stewart Lewis Nunn, a minor suing by next friend, in a cross-action for his own personal injuries received in said collision. On the same day, the Clerk of the Circuit Court of Lauderdale County issued a summons against Thomas J. Walker, Administrator, requiring him to appear in the Circuit Court of Lauderdale County, and answer J. R. Lewis in a suit for damages for personal injuries sustained by his deceased wife in said accident. According to the official returns appearing upon them, these three summonses were served on the day of their issue, September 2, 1947, on Mrs. Nell Avery Walker and Thomas J. Walker, Administrator, in Dyer County, by J. L. Morris, a Deputy Sheriff of Dyer County.

The record discloses that Mrs. Nell Avery Walker and Thomas J. Walker, Administrator, appearing specially through their attorneys, filed motions to quash these three summonses on the following identical ground:

'The summons shows on its face that it is a tort action or purported cross-action of said J. R. Lewis against this movent; that it, said summons, was issued by the Clerk of the Circuit Court of Lauderdale County, Tennessee, to the sheriff of Dyer County, Tennessee, and the return thereon shows that it was executed on this movent in Dyer County, Tennessee, by a Dyer County deputy sheriff, notwithstanding there is nothing on or in said summons showing any authority, legal or otherwise, for the issuance of such summons in Lauderdale County as aforesaid to the sheriff of Dyer County to be there served on this movent.'

It appears from copy of an order handed up with the record after suggestion of diminution, that the Trial Judge sustained these motions to quash and that seasonable objection was made to this action. However, the only assignment of error on this action of the Trial Judge is as follows:

'Because it was error of the trial judge to overrule and quash the cross-summons issued in this cause.'

This assignment is clearly insufficient under Rule 14 of our Court, 173 Tenn. 874, since it fails to state specifically or otherwise, wherein the action was erroneous. However, rather than dismiss the assignment as not being in conformity with the Rule, we have carefully read the brief and argument filed by Plaintiffs in Error in its support. The gist of the only argument made in the brief or at the bar to support the assignment is that it was necessary to issue and serve these summonses to prevent the running of the one-year statute of limitations. Code 1932, § 8572. No reason or explanation is made or attempted why it was necessary to issue the cross-summonses from the Circuit Court of Lauderdale County, rather than from the Court of the residence of the cross-Defendants in Dyer County, as required by Code sec. 8640. No case or statutory authority is cited to support the service of Lauderdale County process on a resident of Dyer County in Dyer County in an action in tort. The procedure was clearly irregular and illegal as process and it was, therefore, invalid and illegal for any purpose. We have recently upheld the rule that a Defendant in a tort action under section 8640 of the Code, has the right, with certain exceptions, to be sued in the County of his residence. Taylor v. McCool, 183 Tenn. 1, 189 S.W.2d 817. The facts of these cases do not bring them within the exceptions and, therefore, the Trial Judge was clearly correct in sustaining the motions to quash this process, and the first assignment of error is overruled.

The next step in the pleading was that on October 18, 1947, as cross-Plaintiffs, Stewart Lewis Nunn, b/n/f, and J. R. Lewis filed cross declarations in the Circuit Court of Lauderdale County against Mrs. Nell Avery Walker and T. J. Walker, Administrator, stating the causes of action indicated by the cross-summonses considered above.

After these cross declarations were filed, they were met by pleas in abatement, the pertinent parts of which are:

'That the said Stewart Lewis Nunn, a minor, by his next friend, Stewart H. Nunn, on October 18, 1947, filed what purports to be a cross-declaration against her pursuant to the issuance and purported service on her in Dyer County of said (considered above) summons.

'That there was no copy of said declaration, certified or otherwise, delivered to her or read to or served upon her and there was no copy, certified or otherwise, of...