State v. Rawlings

• Decision Date: 21 November 1936
• Citation: 98 S.W.2d 95
• Parties: STATE v. RAWLINGS et al. STATE v. RAWLSTON et al.
• Court: Tennessee Supreme Court

98 S.W.2d 95

STATE v. RAWLINGS et al.

STATE v. RAWLSTON et al.

Supreme Court of Tennessee.

November 21, 1936.

Appeal from Chancery Court, Hamilton County; J. L. Foust, Chancellor.

Suits for taxes by the State against Fred Rawlings and others and against Thomas W. Rawlston and others. From that part of the decree dismissing the suits as to defendant Fred Reed, the State appeals.

Reversed and remanded.

Goins & Gammon, of Chattanooga, for complainant.

W. D. Moon, of Chattanooga, for defendants.

CHAMBLISS, Justice.

These are two suits brought in the chancery court for taxes, in "omnibus bill" form. In both suits, respectively brought in 1928 and 1929, to collect taxes for 1926 and 1927, Fred Reed was named as one of the defendants, but the process issued was not served on him. No alias was issued in the first case. In the second case, alias was issued in 1934, but was not served. July 25, 1935, Reed appeared and filed demurrers to both bills alleging the long delay and failure to serve defendant and invoking the bar of the six-year statute of limitations (Code 1932, § 8600) and abatement by abandonment. The chancellor sustained these demurrers, but this court reversed, holding that a demurrer must be related to the facts shown by the bill as of its filing.

Upon remand Reed filed pleas setting up that the cause of action "accrued more than six years before this defendant was served with process in this case, and more than six years before he made defense"; also, that no alias or pluries process had been issued from term to term, or at all within the six years during which the suit had been pending.

The chancellor sustained these pleas and dismissed the suits as to Reed because barred by the six-year statute. His reasons are thus stated in his memorandum opinion:

"The Court is of the opinion that because of the hiatus in the issuance of process the commencement [of the suits] will be related to the date of the filing of the demurrers, which was equivalent to the entrance of appearance.

"The Court is driven to this conclusion by the holding in the case of Hunter v. May, 161 Tenn. 155, 163, 25 S.W.(2d) 580, 582, which is as follows:

"`The rule thus appears to be that, while the neglect of a plaintiff to keep a case alive by issuance of process from term to term until actual service on the defendant operates to give the defendant the right to the entry of an order of discontinuance and dismissal of the case, the case is nevertheless not out of court until such action is taken. But where plaintiff fails to have alias and pluries process issued from term to term, the commencement of the action will be related to the date of the new process, notwithstanding it purports to be an alias, so that all defenses, such as the statute of limitations, will be equally available as in case of a wholly new action.'"

From his decree the State has again appealed.

In Hunter v. May, supra, and in other cases cited for appellee Reed, this court was dealing with actions at law and not suits in chancery, a difference in descriptive phraseology which Mr. Gibson emphasizes, and in the same paragraph he notes a distinction particularly pertinent here when he says: "In a Court of law an action is begun by filing a bond for costs and suing out a summons, but in a Court of Chancery a suit is commenced by filing a...