*1 20-5-110. Action death
spouse. (a) wrongful A suit for the — of the killing brought in spouse may spouse for the surviving the name of the of himself and benefit the children surviving spouse, or the name spouse of the deceased
administrator of kin of the name next spouse. judge opinion The trial provisions control- section were you ling and “unless the surviv- have children, is no ing spouse or then there of a wrongful cause of action for the death dis- respectfully married female.”1 We view, agree. T.C.A. 20-5-110 is a our legislative designation permissibly of those to maintain an in their own
enabled action Clearly right belongs name. action designated by T.C.A. persons to those plaintiff, qualifying kin, may next of maintain this action. Accordingly, reverse the we dismissing the court the action and remand pro- the case the trial court for further ceedings. are taxed to Costs appellee. FRANKS, JJ., concur. GODDARD CLARK, Petitioner-Appellant, L. Connie OF GOVERNMENT METROPOLITAN AND COUN NASHVILLE DAVIDSON TY, Respondent-Appellee. Appeals of
Court of Section, at Nashville. Middle 11, 1991.
Oct. Appeal Application for Permission by Supreme Denied March the intend indicative of legislature repealed would seem to be We note that wrongful death legislature render captioned “Wrongful death T.C.A.§ 20-5-109 “gender neutral.” of action. statute to cause married woman —Succession *2 Herbison, Nashville,
John E. petition- er-appellant. Jones, Law,
Susan Short Director of Wil- Parker, Jr., liam L. Metropolitan Atty., Law, Dept, Nashville, respondent- appellee.
OPINION
TODD, Presiding Judge. Clark, plaintiff, ap- Connie L. pealed ruling upon plain- from an adverse tiff’s seeking for certiorari interloc- utory relief from the action of the Metro- politan granting General Sessions Court in supporting leave to amend an affidavit metropolitan violating citation for a munici- pal ordinance.
—History of the Case— 9, 1990, plaintiff On November filed Circuit Court a “Petition for the Writ of petition alleged Certiorari”. The the fol- lowing: May 1. On an officer of the Metropolitan Department plain- Police cited appear tiff to before July Sessions Court on on a charge Code violation 34-1-1, “Resisting Interfering with Officers”. July 23, plaintiff legal filed a on the Based memorandums filed by counsel, counsel, for defects the cita- argument
motion
dismiss
law,
tion.
applicable
specifically
Murff
State,
111],
B) That reverse action this Court the this Court finds that the Metropolitan General Sessions Metropolitan Judge properly acted Court permitting in the Court amendment of Metropolitan in allowing the Government affidavit of Burnett remand Officer and to amend the to the citation Affidavit this cause for further on the this case issued Petitioner remands original Metropolitan Misdemeanor Cita- Metropolitan to be tried on the Court tion. sup- its the citation merits on
C)
Affidavit,
That
the costs
action be
ported by
the amended
it
Respondent.
to the
taxed
is so ORDERED. Costs are assessed
against
D)
gen-
the Petitioner.
That she have such further or
may
relief as
be entitled.
eral
she
by appellant
stated
is as
sole issue
for
A fiat
the writ of certiorari was
follows:
Clerk, the
signed by the Trial
writ was
grant-
in
the trial court erred
Whether
by the
and the
in
issued
Trial Clerk
record
sum-
pleadings
on the
judgment
the General Sessions Court
transmit-
Respon-
in
the
mary judgment
favor of
ted to the Trial Court.
Metropolitan
dent-Appellee
Government.
Metropolitan
After
answer
above,
of her issue stated
support
Government,
for
plaintiff
moved
following arguments:
plaintiff makes the
pleadings.
on
ex-
appropriately
A. The
Court
Circuit
following
The Trial Court entered
initially
in
supervisory power
its
ercised
order:
interlocutory review
accepting
This matter came before this Honora-
proceedings.
Metropolitan Court
day
January,
on the 11th
ble Court
facts
permit
B.
the statement of
To
Judg-
Motion for
on Petitioner’s
on the
amended
municipal citation
having
Pleadings, the
ment on the
case
day
prior notice
trial without
Metropolitan
from
Court
come
Con-
State and Federal
violates
accused
Petition Writ
review
guarantees.
stitutional
issued
Petitioner had been
of Certiorari.
by the Met-
procedure
C. The
followed
interfering with a
citation for
an excess
ropolitan Court indicates
Metropolitan Code
officer
violation
Court.
upon such
jurisdiction conferred
Judge granted
The Trial
Section 34-1-1.
alternative,
Metropolitan
D.
In the
Amend
Affi-
Motion to
Respondent’s
permitting
illegally
Court acted
citation and Peti-
supporting the
davit
of the affidavit.
amendment
appealed.
tioner
Original
Burrow,
(5 Lea.)
—The Nature of the
Action— Bristol
(1880);
City Chattanooga,
Meaher v.
complaint alleges
plaintiff
(1 Head)
(1858);
Aizenshatt
municipal
cited for violation of a
Jackson,
Mayor
City
and Aldermen of
of Nash-
Government
(1
Higgins)
1 Tenn. CCA
County,
ville and Davidson
Tennessee.
Pleadings in a
civil case before
of General Ses
General Sessions Court are “ore tenus”
sions is authorized to hear civil actions
(oral,
court),
in open
except
plea
where the
government
municipal
for violations
required
is
to be under
Craig
oath.
its ordinances and criminal actions for vio
Collins, Tenn.App.1974,
because this case should be decided on to determine a lower tribunal whether grounds cedural alone. The common law proceed a failure accord there has been of certiorari should not used as a writ be requirements to the essential appealing general vehicle for sessions Gatlinburg Regulation law. Beer Comm. 891, Ogle, court’s decisions when Tenn. 185 Tenn. 206 S.W.2d v. writ, (1948). discretionary (1980) 893 It is a provides Code Ann. an § 713-14, Williams, 704, Boyce v. 215 adequate appeal procedure. I 272, (1965), and should not 389 S.W.2d majority’s concur with conclusion seeking granted person if the it has “erroneously granted,” but I writ adequate appellate remedies. Pack other join in the remainder of the ma- decline 452, Cos., 224 Tenn. Royal-Globe Ins. jority’s opinion. 19, (1970); Tragle 457 S.W.2d Burdette, I. 438 S.W.2d (1969). help Connie Clark called the Terry Burnette re- May 1990. Officer general ses- dissatisfied with the Parties the call and had some sort of sponded to statutory have a court’s decision sions he with Ms. Clark while altercation in the circuit court. right to another trial apparently 27-5-108(a). men questioning three who had Ann. Tenn.Code See § house trail- means fighting near Ms. Clark’s court is de novo which been trial in circuit result, anew. Burnette issued case is tried See simply er. As a Officer 27-5-108(c); interfering Allen a citation for with a Ann. Ms. Clark Tenn.Code Head) 436, (1 Wood, in police officer violation of appellant’s disingenuous Contrary to the 34-1-1. Ordinance No. parties during argument, assertions in
may assert the same claims and defenses they circuit court that asserted general sessions court. prepared general sessions court was hear Ms. case on the merits Clark’s
October, All these later pre- unnecessary have been had she would Had she been dissatisfied with the vailed. outcome, have obtained a de novo she could where she could trial the circuit court have raised all the claims and defenses she proceeding.
seeks to raise in this certiorari now, things months stand over sixteen elapsed the issuance of the cita- have since tion, and this matter is still not resolved. appeals intended to
Interlocutory are needless, expensive, protracted prevent folly litigation. This case demonstrates circumventing Tenn. Ann. 27-5- Code Making the writ available circum- provide only as this one stances such will delay their defendants with the means court and will general trials in sessions prevent protracted liti- promote rather than should have sum- gation. The circuit court marily denied Ms. Clark’s of certiorari. *7 TURNER,
Timothy W. Appellee, Plaintiff/ NASHVILLE, COMPANY OF ALDOR Defendant, INC., Corporation Indiana Door Overhead Corporation, Corporation, Dallas a/k/a Defendants/Appellants. Appeals Section, Nashville. Middle at 20, 1991. Nov. Appeal Application for Permission Supreme Court Denied 16, 1992. March