54 Tenn. 559 | Tenn. | 1872
delivered the opinion of the Court.
Plaintiff gave formal notice to the defendant, a constable of Maury county, that he would move against him and the securities on his bond, for judgment against them for money collected on executions, which the constable failed to pay over. Upon the day specified, to-wit: 26th May, 1866, the following entry was made on the minutes of the Court (after naming parties): “ The parties by their attorneys appear, and thereupon on motion it is ordered by the Court that the motion made in this case be entered and continued to some future day of this term for argument.” As far as we can see, on looking through the record, no entry of the motion ever was made, and the Court dismissed the case because the above entry was insufficient.'
In this there was no error. The notice is not the commencement of a suit. The entry of the motion is. There was no suit pending here, as no motion had in fact been made, but only an order permitting it to be entered. Until this was actually done, no judgment could properly be rendered, as there was nothing before the Court for trial.
Affirm the judgment.
