Frazier v. Biddle Auto Co.

138 Tenn. 428 | Tenn. | 1917

Me. Evans, Special Judge,

delivered the opinion of the Court.

This was an action for damages for breach of contract brought by E. J. Frazier against J. B. Dooley, C. L. Dooley, and J. C. Biddle, doing business as the Biddle Auto Company, before a justice of the peáce in Knox county, where judgment was entered in favor of plaintiff below. On the next day the defendants below attempted to execute an appeal bond which was signed “Biddle Auto Co., J. B. Dooley, C. L. Dooley, and J. C. Biddle,” and at the same time prayed an appeal to the next term of the circuit court.. This bond was approved by the justice, and the appeal granted.

Thereafter, in the circuit court, plaintiff below moved to dismiss the appeal upon the ground that a proper appeal bond had not been filed, since it contained no sureties, and that, as a matter of law, the case was not properly in the circuit court. This motion was sustained, and the suit dismissed, but, upon application, the order of dismissal was set aside, and the defendants allowed to amend the appeal bond so as to add proper sureties and make the same conform to law. Upon a subsequent day the defendants below moved the court to require plaintiff himself to execute a prosecution bond, which motion was granted, but plaintiff declined to comply, standing upon his insistence that the appeal bond could not be amended, and that the cause was not properly in the circuit court. Plaintiff’s suit was thereupon dismissed at his costs, which judgment was affirmed by the court of civil appeals and the case is here upon the writ of certiorari.

The exact question presented by this record is whether a circuit judge may ajllow an amendment of an appeal bond which does not comply with the statute, or permit the substitution of a new one instead of the old and defective obligation.

We have been referred to no case in Tennessee directly, deciding this question, as applied to the character of bond which is required by our statutes to be made in an appeal from a magistrate’s court.

The sections of Shannon’s Code applicable to the case are as follows:

“4871. Any person dissatisfied with the judgment of a justice of the peace, mayor, or recorder, in a civil action, may, within two entire days thereafter. Sundays exclusive, appeal to the next circuit court.

“4872. Before the appeal is granted, the person appealing shall give bond, with good security, as hereinafter provided, for the prosecution of the appeal.”

It is insisted with much earnestness by the plaintiff in error that before an appeal may be granted by a magistrate a “bond with good security” shall be given, and that in the present ease no security at all was given, and therefore the case was not properly in the circuit court upon such a bond, even though the magistrate accepted it and granted the appeal.

It has been held that, under the first section above quoted, a justice has no jurisdiction to grant an appeal after the expiration of two entire days from the date of- the judgment, Sundays excluded. Gilbert v. Driver, 40 Tenn. (3 Head), 463; Park v. Bybee, 60 Tenn. (1 Baxt.), 267; Howard v. Long, 71 Tenn. (3 Lea), 207.

With reference to defects in proceedings originating in a magistrate’s court, however, and the allowance of amendments thereto, we have several statutes in Tennessee

Two sections of Shannon’s Code are as follows:

“Sec. 4595. In appeals from justices of the peace, the circuit court shall supply any defect in the proceedings of the inferior jurisdiction, as though the suit had been commenced in the circuit court.”

“Sec. 5989. No civil case, originating before a justice of the peace and carried to a higher court, shall be dismissed by such court for any informality whatever, but shall be tried on its merits; and the court shall allow all amendments in the form of action, the parties thereto, or the statement of the cause of ación, necessary to reach the merits, upon such terms as may be deemed just and proper.”

Again, section 4583 of Shannon’s Code is as follows:

“No summons, writ, pleading, process, return, or other proceedings in any civil action in any court, shall be abated or quashed for any defect, omission, or imperfection. ’ ’

In our opinion, the above-quoted statutes apply to the case here under consideration, and were authority for the action of the circuit judge in allowing an amendment of the bond to be made.

This court has held in several cases that upon an appeal from an inferior court to the supreme court of Tennessee a defective appeal bond may be amended in the supreme court. Staub v. Williams, 69 Tenn. (1 Lea), 36; Wilson v. Corry, 69 Tenn. (1 Lea), 391; Croft v. Bailey, 69 Tenn. (1 Lea), 369. See, also, Railroad v. Hinds, 134 Tenn., 345, 183 S. W., 985, L. R. A., 1916E, 420; Jones v. Ducktown Co., 109 Tenn., 382, 71 S. W., 821. There are also cases from other States to the same effect. 3 Corpus Juris, 1185, and cases cited. And this seems to be the practice in the supreme court of the United States. Catlett v. Brodie. 9 Wheat. (22 U. S.), 555, 6 L. Ed., 158.

We are of the opinion that the circuit judge was correct in permitting this amendment, and the judgment of the court of civil appeals so holding is affirmed.