Royal Clothing Co. v. Holloway
| Decision Date | 26 May 1961 |
| Citation | 12 McCanless 572,347 S.W.2d 491,208 Tenn. 572 |
| Parties | ROYAL CLOTHING COMPANY v. A. D. HOLLOWAY, Jr. 12 McCanless 572, 208 Tenn. 572, 347 S.W.2d 491 |
| Court | Tennessee Supreme Court |
Hughes & Mayfield, Chattanooga, for plaintiff in error.
Roberts & Weill, Chattanooga, for defendant in error.
On September 26, 1960, the Royal Clothing Company brought a suit in the General Sessions Court against A. D. Holloway, Jr., for a balance due on a title retention contract, and on October 10, 1960, recovered a judgment against him for the sum of $167.37.
On November 15, 1960, Holloway filed in the Circuit Court a petition for certiorari and supersedeas, averring that he had not executed the alleged contract, that no process in said suit was served on him, and he had no knowledge of the suit or the judgment until garnishment was levied on his wages on October 28, 1960; and that he owes plaintiff nothing, said judgment is wholly unjust, and that he would have appealed therefrom had he known of it in time. The writs of certiorari and supersedeas were issued upon the pauper's oath.
Plaintiff Royal Clothing Company filed a motion to dismiss the petition and to quash the writs of certiorari and supersedeas upon a number of grounds, one of which was that the petition was wholly insufficient in law because petitioner could not impeach the officer's return which showed process had been regularly served upon petitioner.
On December 8, 1960, plaintiff's motion to dismiss the petition and quash the writs was heard before Judge Hunter and overruled. Plaintiff excepted and prayed an appeal, which, for the time being, was denied. On March 6, 1961, the whole case came on to be heard on the merits before Special Judge John C. Goins; and neither party offered any proof but the case was submitted upon the petition, the exhibits thereto (the General Sessions warrant, the officer's return thereon, and the judgment), and the motion to dismiss.
The Special Judge entered judgment dismissing the case and taxing the costs against plaintiff Clothing Company. Plaintiff appealed in error and has assigned errors insisting that the officer's return on the General Sessions Court warrant, on which the judgment was rendered, showed that petitioner Holloway was served with process and that he cannot be permitted to deny such service or, by his oath alone, to impeach the officer's return.
It is held in a number of our cases that a motion to dismiss a petition for certiorari is to be treated like a demurrer and on such motion the allegations of the petition are to be treated as true except as to facts shown by the record. In Wilson v. Moss, 54 Tenn. 417, 419, it is...
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Willis v. Dept. of Corrections
...there are no facts in the record other than the allegations in the petition which must be taken as true. Royal Clothing Co. v. Holloway, 208 Tenn. 572, 574, 347 S.W.2d 491, 492 (1961) (holding that in the absence of a record, the factual statements in a petition for common-law writ of certi......
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Gore v. Tennessee Dept. of Correction, M2002-02640-COA-R3-CV.
...the facts stated in the petition are taken to be true, except as to matters contradicted by the record." Royal Clothing Company v. Holloway, 208 Tenn. 572, 347 S.W.2d 491, 492 (1961). The Supreme Court of Tennessee long ago stated: "The motion to dismiss involves the question whether the ma......
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Wilson v. Tennessee Department of Correction, No. W2005-00910-COA-R3-CV (TN 2/13/2006)
...by the record." R.J. Wilson v. Moss, 54 Tenn. (7 Heisk.) 417, 419 (Tenn. 1872) (emphasis in original); see also Royal Clothing Co. v. Holloway, 347 S.W.2d 491, 492 (Tenn. 1961); Bowling v. Tenn. Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 Tenn. App. LEXIS 291, at *8-9 (Tenn. Ct. App. Ap......
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Hart v. Memphis Light Gas & Water Div.
...(4th ed.2008)). The return is a means to prove that service of process has actually been accomplished. See Royal Clothing Co. v. Holloway, 208 Tenn. 572, 347 S.W.2d 491, 492 (1961); Brake v. Kelly, 189 Tenn. 612, 226 S.W.2d 1008, 1011 (1950). When a dispute arises as to whether service of p......