Wroe v. Greer
| Decision Date | 31 December 1852 |
| Citation | 32 Tenn. 172 |
| Parties | WROE AND WIFE v. GREER. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
The judgment in this case was rendered, as stated in the opinion at the August term, 1851, of the circuit court for DeKalb county, Turner, judge, presiding.
Colmes & Cantrell, for plaintiff in error; M. M. Brien, McWhirter, and Quarles, for defendant in error.
The action is unlawful detainer, to recover the possession of a house and tract of land. There was judgment for the plaintiffs before the justices of the peace; and defendant appealed to the circuit court, where he filed his plea in abatement, alleging that Justice Williams, who issued the writ, and sat with two other justices on the trial, was incompetent to try the case, because he was cousin to defendant's wife, and that defendant did not waive this objection at the trial. A demurrer to the plea was overruled, and judgment rendered for defendant, from which the plaintiff has appealed in error to this court.
The practice adopted in the case was irregular, and the judgment erroneous. The objection for incompetency of the justice should have been taken before him, and before a trial upon the merits; if not so taken, the objection is to be considered as waived. For a party may waive, and preclude himself from taking any objection to a decision on account of the judge being related to one of the parties; and the waiver may be express, or by necessary implication. 3 Bla. Com. 299, and notes; Matthew v. Ollertin, 4 Modern, 226.
But here the objection, if it were not waived, had ceased to have any application to the case. The appeal to the circuit court had the effect to supersede the judgment of the justices, and the case was now to be tried de novo, upon its merits, before a competent court. It was the same as if the case had been originally instituted, as it might have been, in the circuit court. The question whether the competency of the justice had been waived while the case was before him had ceased to be of any utility or effect in the case, now that it was no longer before him, and was again to be tried upon its original facts, in the same manner as if there had been no former trial.
The judgment is reversed, and the cause remanded to the circuit court to be proceeded in.
Judgment reversed.
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Dupuis v. Hand
...competence cannot be made for the first time on appeal; the objection should come before trial is had on the merits. See Rowe v. Greer, 32 Tenn. 172 (1852); Hilton v. Miller & Co., 73 Tenn. 395 (1880); Obion County ex rel. Houser Creek Drainage District v. Coulter, 153 Tenn. 469, 284 S.W. 3......
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Pierce v. Tharp
...in limine on the hearing and petitioners are conclusively presumed to have consented to his or their participation in the hearing. Wroe v. Greer, 32 Tenn. 172 (2 Swan); Crozier v. Goodwin, 69 Tenn. 125; Grundy County v. Tennessee Coal Iron & R. Co., 94 Tenn. 295, 325, 29 S.W. 116; In re Cam......
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In re West
...are, likewise, waived by her failure to raise these arguments in either the circuit court or the juvenile court. See Wroe v. Greer, 32 Tenn. 172, 173 (Tenn. 1852) (holding that, inter alia, an objection to the competency of a general sessions judge was waived because the objection was raise......
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In re West
...in the juvenile court ultimately has no relevance. In that regard, the old but still wise Tennessee Supreme Court decision in Wroe v. Greer, 32 Tenn. 172 (1852), is particularly instructive. Although the WroePage 2court held that an objection to the incompetency of a justice of the peace1 w......