State v. Thompson

• Decision Date: 11 May 1907
• Citation: 102 S.W. 349,118 Tenn. 571
• Parties: STATE EX REL. SPRATLIN v. THOMPSON.
• Court: Tennessee Supreme Court

102 S.W. 349

118 Tenn. 571

STATE EX REL. SPRATLIN v. THOMPSON.

Supreme Court of Tennessee.

May 11, 1907

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Petition for mandamus by Katie Spratlin against Louis P. Thompson to compel defendant to issue, as clerk of the circuit court, a writ of fieri facias. From a judgment dismissing the petition, petitioner appeals. Affirmed.

Thos M. Scruggs, for appellant.

Fitzhugh & Fitzhugh, for appellee.

NEIL J.

At the March term, 1906, the case of Katie Spratlin against the United States Casualty Company in the circuit court of Shelby county, a judgment by default was rendered against the defendant in that case for $5,172. The judgment recites that the plaintiff "moved the court for a judgment against the defendant for the amount of the debt and interest sued on in said declaration, and evidenced by the policy sued upon the defendant having been properly served with process herein, and having failed to file any pleas to said declaration." The entry does not show that the defendant was called out; nor does it appear that the policy had been filed with the record. The record shows, on the contrary that it was not filed until a subsequent term; that is to say, the judgment by default was rendered on May 12, 1906, and the policy was filed October 24, 1906.

On the 2d of June, 1906, which was during the May term of the circuit court, the following entry was made in the cause referred to:

"Katie Spratlin v. U.S. Casualty Co.

This cause came on to be heard on the motion of defendant to set aside the judgment by default heretofore entered, to wit, on May 12, 1906, and to reinstate the cause, which said judgment by default was granted on the statement made by counsel for plaintiff that it would be set aside if any counsel appeared and made application therefor. And counsel for plaintiff having appeared in open court and assented thereto, it is accordingly ordered and adjudged that said judgment by default be set aside and this cause reinstated; and defendant is allowed thirty days within which to plead."

On the 23d of June the pleas of the defendant in that case were filed.

On October 24, 1906, a petition for mandamus was filed against the clerk, and that petition is the foundation of the present action.

The petition, after reciting the recovery of the judgment by default and the order setting it aside, further alleges that the last-mentioned order was made without petitioner's consent and over her protest; furthermore, that the judge had no power to enter the order, since the term of court at which the judgment by default was rendered had already terminated.

It further alleges that on the 16th of October, 1906, the petitioner demanded of the clerk of the circuit court a writ of fieri facias, but the clerk refused to issue it. Thereupon the petitioner prayed that a mandamus be issued, commanding the clerk to issue the writ.

The United States Casualty Company was not made a party to the proceeding.

A copy of the record in the case in which the fi. fa. was sought accompanied the petition, and from it appeared the facts connected with the judgment by default and the order setting it aside, and the other facts above detailed. The declaration in that cause was as follows:

"The plaintiff, Katie Spratlin, sues the defendant, United States Casualty Company, a corporation doing business in the state of Tennessee, for the sum of five thousand dollars ($5,000), with interest thereon since October 16, 1905, and for cause of such action shows: That the defendant corporation is doing business in Tennessee, with power to insure the lives of persons and to issue its policies therefor. That, in consideration of the premium then and there paid by plaintiff to the defendant, the defendant did, on the 5th day of January, 1904, issue its policy to the plaintiff upon the life of William A. Spratlin, which policy is numbered 163,589, and denominated 'Peerless Policy of Personal Accident Insurance,' which policy is here to the court shown. That by said policy of insurance, or contract, the defendant obligated, promised, and bound itself to pay to the plaintiff, Katie M. Spratlin, wife of W. A. Spratlin, the sum of five thousand dollars ($5,000) upon satisfactory proof of the death of William A. Spratlin. While said policy was in full force and effect said William A. Spratlin received a bodily injury, effected exclusively and directly by external, violent, and accidental means, independent of any other cause, resulting in the immediate death of said William A. Spratlin, due notice of which was given the defendant, as provided in said contract. That according to the terms of said contract or policy the payment of said $5,000 was demanded of the defendant, but the same was refused, and the defendant still fails and refuses to pay the same without cause. That said failure and refusal to pay said sum of $5,000 by the defendant is not in good faith, and the plaintiff has been forced to an additional cost of $1,250. Plaintiff therefore sues the defendant for the sum of $6,250, with interest thereon since the 16th day of October, 1905, as provided by said contract and the laws of Tennessee; and the plaintiff demands a jury to try the issues involved in this cause."

The circuit judge declined to issue the alternative writ prayed for in the petition, and dismissed the petition. Upon this action of the court the petitioner appealed to this court, and has here assigned errors.

During the argument a question was suggested concerning the failure of the plaintiff to call out the defendant in the original cause before the default was taken.

Good practice requires that the party should be called...