Seymour v. Southern Ry. Co.

• Decision Date: 08 December 1906
• Citation: 98 S.W. 174
• Parties: SEYMOUR v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

Page 174

98 S.W. 174

SEYMOUR v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

December 8, 1906.

Appeal from Circuit Court, Union County; H. Clay James, Judge.

Action by Arminda Seymour against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Jerome Templeton, J. P. Rogers, and J. O. Sharp, for appellant. Jourolmon, Welcker & Smith and D. D. Anderson, for appellee.

BEARD, C. J.

This action was brought by the administratrix to recover damages for a personal injury inflicted upon her intestate by the railway company, resulting in his death. The present suit was brought more than a year after the infliction of the injury, and the statute of limitations applicable to this class of cases was interposed by the company. In reply, it was insisted that there was a prior suit for the same cause of action brought within one year of the injury, which suit was dismissed; and that the present action was brought within one year thereafter.

The defendant below met this contention with a denial, insisting that the former suit had not been dismissed when the present one was brought, but was still pending, and hence that the plaintiff below had not brought her case within the saving of Shannon's Code, § 4446. The trial judge took this view of the matter, and sustained the motion for peremptory instructions in favor of the defendant below. The evidence bearing upon the point being uncontroverted, a judgment was thereupon rendered in favor of the defendant, and from this the plaintiff appealed to this court, and has here assigned errors.

There was no motion for a new trial made in the court below.

In the view we take of the case, only two questions are presented:

1. It appears, on suggestion of diminution of the record and a copy of the entry below offered by consent in lieu of the actual issuance and service of the writ of certiorari, that at a term of the circuit court of Union county prior to the term at which the present suit was tried, an order was entered in the following words: "All motions for new trial must be reduced to writing, and entered upon the minutes; the several grounds of error upon which new trials are asked, whether of law or fact, must be taken separately and specifically numbered; and no error will be considered except such as are assigned in said written motion in this manner. This rule will be entered upon the minutes of this court, and will constitute a part of the record upon every case...