Peirce v. Bank of Tenn.

Decision Date31 December 1851
Citation31 Tenn. 265
CourtTennessee Supreme Court


Upon the trial of this case in the circuit court there was judgment for the plaintiff, and the defendants appealed in error. The facts are stated in the opinion with sufficient fulness.

John J. White, for plaintiffs in error. We contend there has been a discontinuance of the cause. In England, even in making up the issue, an imparlance, or giving time to plead, is necessary in order to continue a cause in court. 1 Chitty's Pl. 423; 6 Com. 266, 268. That is not the practice here; but still we suppose the cause cannot be omitted from the docket for years without any notice being taken of it, and no continuance entered upon any docket, without its operating as a discontinuance. The plaintiff is always supposed to have, and, in point of fact, has, the control over his own case, and he mav be supposed to have dismissed it out of court. N. & C. 196. An act of Assembly has been passed to prevent the death or non-attendance of a judge from working a discontinuance of the cases. So, where a term has intervened from the death of a party to the qualification of his executors, it was considered necessary to have an act of Assembly to prevent a discontinuance of the cause. When a writ is issued, it must be put upon a book, showing the necessity of its being kept there. N. & C. 204; 205, 210, 65 546. The plaintiff knew whether he had a cause in court, and if not placed upon the docket, he could have applied to the court and had it done. There is an act of Assembly, likewise, directing all issues to be heard and tried the next term after the issue shall be made up, unless sufficient cause is shown to the court for its continuance. 1 Scott, 479. If this has not been done for a series of years, is not the inference irresistible that the same has been abandoned and discontinued by the party? It ought to be regarded as a discontinuance, to give an endorser in another suit an opportunity to plead the statute of limitations, or such indulgence on the part of the plaintiff, to the principal, as would discharge the party.

Guild, for defendant in error.

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

The plaintiffs in error were endorsers of a promissory note for $500, made by one Andrew Martin, and negotiated to the defendant; were sued in the circuit court of Sumner, in debt, jointly with the maker.

The summons was issued on the 30th of May, 1842, returnable to the June term, 1842, and was served on all the parties. At the appearance term a declaration was filed, and the defendants appeared and filed two pleas to the action-- payment of, and set-off--upon which issues were joined.

This being done, the cause was suffered to slumber for a period of more than seven years, during which no step was taken by either party to bring the case to trial. The clerk omitted to transfer the suit from the appearance to the trial docket; and it seems to have been lost sight of--the attorney of the bank, as well as the plaintiffs in error, being under the mistaken impression that the debt sued for had been adjusted between the maker of the note and the bank.

On the 24th of September, 1849, the attorney of the bank filed an affidavit with the clerk of the court, in vacation, setting forth that the declaration and note were lost or mislaid, and thereupon caused written notice to be served on Pierce & Pittman, to appear at the October term, 1849, and defend said suit. They accordingly appeared, and, in the form of a plea puis darrein continuance, alleged that the suit was discontinued. To this plea the plaintiffs replied, and the pleadings were extended to a sur-rejoinder, to which ...

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