Parker v. Reddick
| Decision Date | 21 May 1954 |
| Parties | PARKER v. REDDICK. 32 Beeler 472, 196 Tenn. 472, 268 S.W.2d 357, 45 A.L.R.2d 1096 |
| Court | Tennessee Supreme Court |
Robert F. Brinkley, R. H. Harsh, Douglas N. Hester, Gallatin, for plaintiff in error.
J. W. Murrey, Jr., Gallatin, for defendant in error.
Referring to the parties to this suit as they appeared in the trial court, J. H. Reddick, as plaintiff, sued the defendant, Parker, for damages for slander. Process was served upon the defendant who thereupon pleaded in abatement of the summons as follows:
'Now comes your defendant, Reeder Parker, a resident of Humphreys County, Tennessee, and pleas in abatement to the summons and subsequent proceedings issued and served upon him in this cause for the following reasons, to-wit:
'The said summons was served upon the defendant on the Twenty-Second (22nd) day of January, 1953, by J. B. Bracey, sheriff of Sumner County, Tennessee and at this particular time said defendant, Reeder Parker was the duly elected, qualified, and acting Attorney General of the Ninth Judicial Circuit of the State of Tennessee and particularly the Attorney General for Sumner County, State of Tennessee and when the aforesaid summons was served on said Reeder Parker, said Reeder Parker was at the aforesaid time in the Court room of the Sumner County House at Gallatin, Tennessee acting in his official capacity as Attorney General of the Ninth Judicial Circuit of the State of Tennessee, and was, in fact, prosecuting the case of the State of Tennessee vs. Majoe Elliott, who was charged with possessing intoxicating liquors, contrary to the laws of the State of Tennessee and said prosecution by said Reeder Parker was being held in the Circuit Court for Sumner County, Tennessee on the aforesaid date and that said Reeder Parker was in Sumner County on said date for the aforesaid purpose and further for the purpose of carrying out the administration of justice for Sumner County, Tennessee in the Circuit Court for said County and for no other purposes and therefore the summons served as aforesaid on the said Reeder Parker and all subsequent proceedings there under are wholly void and of no force or effect.
'Hence, the defendant prays to be dismissed by reasonable cost.'
The plaintiff moved the court to strike the foregoing plea on the ground that 'said plea sets forth no facts which if proved constitute the basis for abating the suit.' The trial judge treated the motion as a demurrer and overruled it. An appeal was thereupon prayed and granted to this Court. The action of the trial judge in granting the discretionary appeal is based upon Code Section 9038, Chapter 154, Public Acts of 1953, and reads as follows:
'The Chancellor or Circuit Judge may, in his discretion, allow an appeal from his decree in equity causes determining the principles involved and ordering an account or a sale or partition or other character of reference, before the account is taken or the sale or partition is made or the reference had; or he may allow such appeal on overruling a demurrer; or he may allow any party to appeal from a decree which settles his right, although the case may not be disposed of as to others.'
The foregoing Code Section plainly authorizes judges of the Circuit Court to grant discretionary appeals, the same as Chancellors, in equity causes. It specifically provides: '* * * or he may allow such appeal on overruling a demurrer'. While both Chancellors and Circuit Judges may grant discretionary appeals from interlocutory orders, as provided in the statute we do not construe it to mean that an appeal may be granted from every such order 'affecting his right' but only where such order is determinative of the merits of the case or is otherwise expressly authorized by the statute.
The sole question presented in the several assignments of error involves the immunity from service of civil process by...
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