88 Tenn. 240 | Tenn. | 1889
This is a suit for seduction and breach of marriage promise, and originated in the Circuit Court of Marion County. Verdict and judgment were for the plaintiff. Defendant moved for a new trial, which was refused, and he has appealed in error to this Court. Numerous errors have been assigned. Two of the assignments are to the action of the Circuit Judge on the pleadings :
First — On motion of the plaintiff’s attorney, the Circuit Judge struck out the defendant’s plea of the statute of limitations of one year.
Second — On motion of the plaintiff’s attorney, the Circuit Judge also struck out the defendant’s fourth plea, which was that this suit was not the suit of the plaintiff, but- the suit of her father, Jas. W. McReynolds, and was instituted without her knowledge and prosecuted without her consent and against her will.
We will consider these assignments in their order.
The statute of limitations is a legal defense, which the defendant was entitled to have the benefit of; and if the action of the trial Judge in
The first count in the declaration is as follows: “ The plaintiff, who avers that she is a single woman and was twenty-one years of age on October 26, 1887, sues the defendant for $50,000.” Then follows a statement of her cause of action.
The defendant’s sixth plea is that the plaintiff attained her majority of twenty-one years more than twelve months before the suit was brought. This is the plea under which it is claimed that the defendant had the benefit of the defense of the statute of limitations.
It is clear that the Circuit Judge treated the averment in the declaration that the plaintiff “was twenty-one years of age on October 26, 1887,” as an averment that she had attained her majority at that time. The defendant also so treated it, and traversed this averment by his sixth plea, and we will so treat it.
It is also clear that the Circuit Judge thought that said averment in the declaration and the traverse thereof by the sixth plea made an issue upon the statute of limitations, and were equivalent to a plea of the statute and a replication
The sole issue presented by this plea was whether or not the plaintiff had attained her majority within twelve months before suit brought. It is clear that, except in reply to a plea of the statute, the right of the plaintiff to recover could not be affected by the fact that she had attained her majority more than twelve months before the suit was brought. In the absence of the plea of the statute, her right to recover would be as complete at fifty years of age as at twenty-one, and though she should admit on the witness stand that she .attained her majority more than three years before shit brought, and the jury should so find the fact, nevertheless the Court would be com-
In any aspect of the case, the averment in the declaration that the plaintiff had attained her majority within twelve months before suit brought was wholly immaterial, and the traverse of this averment by the sixth plea raised an immaterial issue, under which the defendant could not have the benefit of his defense of the statute of limi
The action of the Circuit Judge in striking out the defendant’s fourth plea was not error. This plea presented an issue of maintenance for the jury to try. It is the province of the Court, and not the jury, to try the question of maintenance and determine whether it exists, and, if it does, to dismiss the suit. It was • not a proper question to be submitted to the jury.
Furthermore, in the same _ oi’der striking out this fourth plea as a plea, the Court ordered that the plea should stand as an application for a rule on. the plaintiff’s attorneys to show by what authority they prosecuted the suit in the plaintiff’s name; and the rule was made accordingly. Defendant excepted to this order, except that portion of it making the rule on plaintiff’s attorneys. In answer to the rule, plaintiff’s attorneys filed the affidavit of the plaintiff* herself, in which she swears that the suit is prosecuted by her direction and for her benefit, and that she ratifies and approves all that has been done by her attorneys in the ease. Upon this affidavit the rule was discharged, and this is assigned as error. We know of no better. way for an attorney to show by what authority he prosecutes a suit in the name of the plaintiff than by producing the sworn statement of the plaintiff* that he has her express authority. Certainly the defendant has no right to complain. He still had the right, at any stage of
It is assigned as error that the Circuit Judge refused to make an order compelling the plaintiff to appear personally at the trial, so that defendant might cross-examine her before the jury. TJie application for this order was made by the defendant before the trial, and before any attempt had been made to take the plaintiff’s testimony by deposition or other Avise. The Circuit Judge was correct in refusing to make the order as applied for and at the time applied for. Moreover, the plaintiff was personally present at the trial and testified before the jury, so that no injury resulted to the defendant from the refusal of the Court to make the order.
Several errors to the rulings' of the Court, in excluding evidence offered by the defendant, are assigned. One is as follows: Mrs. McReynolds was asked on cross-examination if her husband, Jas. ~W. McReynolds, did not say that if she did not swear plaintiff’s child to the defendant he would send her to hell in a minute. The Circuit Judge refused to allow her to ansAver the question.
But we think the witness should have been allowed to answer the question, upon the ground that her answer might affect her credibility as a witness. The proof shows that Jas. W. McBey-nolds is the husband of the witness, Martha J., and the father of the plaintiff, and that they live with him; and there is proof tending to show that he is a violent and dissipated man, and that he was not on friendly terms with the defendant or with his wife’s father, and that his wife and daughter were afraid of him. There is also proof tending to show that he had .importuned the plaintiff in relation to this suit, and threatened to do her bodily harm if she did not swear her child
We find that the charge of the Court is, in the main, correct, but as the case must be retried, we do not deem it necessary, to pass upon the special assignments of error to the charge, or any other assignments of error not hereinbefore considered; and we intimate no opinion on the merits of the case.
Eor the errors indicated, the judgment of the Circuit Court will be reversed and the cause remanded for a new trial.
T. S. Webb, Esq., of the Knoxville bar, was appointed and commissioned by the Governor to preside on trial of this case, on account of the incompetency of Chief Justice Turney by reason of relationship to the parties.