109 Tenn. 84 | Tenn. | 1902
delivered the opinion of the Court.
This suit was begun by motion before a justice of the peace of Hamilton county against the plaintiff in error, I. C. Morgan, and his sureties on his official bond as constable; notice not being served on the sureties, but on Morgan alone.
The paper presented before the justice of the peace as the basis of the motion, purporting to be a copy of the bond, had upon it only the following certificate:
*86 “The foregoing is a correct copy of bond and oath of I. C. Morgan, constable,” etc. “This 3d day of Jan-nary, 1900. E. J. Dillard, deputy clerk.”
The motion, as made before the justice of the peace, Avas for the nonreturn of an execution specified therein. The justice of .the peace rendered judgment against Morgan and his sureties on the motion, and the cause was thereupon appealed to the circuit court.
In that court Betterton & Co. offered the same paper, purporting to be a copy of the bond, that had been offered before the justice of the peace, and it Avas objected to, because not properly certified. The objection Avas sustained, but his honor, the circuit judge, allowed Betterton & Co. to have placed upon the paper a fuller certificate showing that the paper was “a full, true and perfect copy of the bond” of the said constable as the same appeared of record in his office, etc.; the certificate being signed by the clerk of the county court, and having attached thereto the seal of the court. The paper was then again offered in evidence, but Avas objected to on the ground that, inasmuch as the certificate was fatally defective when the paper purporting to be a copy of the bond was offered in evidence before the justice of the peace, and no notice of the proceeding having been served on the sureties, the justice of the peace acquired no jurisdiction of them, and, if he had no jurisdiction, the circuit court could not acquire jurisdiction by appeal, and that,
Error is also assigned upon tbe charge which bis honor delivered to tbe jury. Tbe portion of tbe charge objected to was as follows: After charging correctly upon tbe subject of tbe nonreturn of an execution, be proceeded: “As before stated, tbe motion is predicated upon tbe idea, also, that tbe return is insufficient. Tbe mere indorsement upon tbe execution that be bad collected twenty-five dollars, and dating it, without any other explanation of bis action, would not be a complete and sufficient return within tbe meaning of tbe statute, and, if that is tbe proof in tbe case, your verdict should be for tbe plaintiff.”
His honor stated tbe substance of tbe return correctly, but be did not correctly state tbe motion. That was for nonreturn of tbe execution only. It contained no averment whatever with respect to an insufficient return.
It is also insisted by tbe plaintiff in error that there was no evidence of a nonreturn, and error is assigned upon tbis matter.
As to tbe first error: Tbe paper which -was offered purported on its face to be a record of Hamilton
In view of these facts, and of the rule that the court is presumed to know the officers of the several counties of the State, it is insisted by defendant in error that the paper was prima facie admissible, under the authority of Stinson’s Lessee v. Russell, 2 Overt., 40-42. On the other hand, it is insisted by the plaintiff in error that the rule established in this case as to informal certificate has been superseded by the Code, and that the latter requires that the certificate shall be under the seal of the court.
Such is the requirement of section 5579 of Shannon’s Code. This section is in a chapter entitled “Documentary Evidence,” and itself applies in terms to “judicial records.” We think the term /‘judicial records,” as used in this section, is sufficiently broad to cover the bond of a constable, which is required to be recorded in the county court. Shannon’s Code, section 476. The Code provision is later than the ease above referred to, and others cited by counsel
It follows that there was, in truth, no certified copy of the constable’s bond produced before the justice of the peace under the facts aboye stated.
Prom this it follows that the justice of the peace never acquired jurisdiction of the sureties, because, no notice having been served on them, it was essential to his jurisdiction over them that the plaintiff should have produced to him a certified copy of the bond. Shannon’s Code, section 5982. The section referred to does not use the term “jurisdiction,” but that is necessarily its meaning, because the rendering of judgment is the first act to be done by the justice of the peace in such a case, and, if he have no power to do this without the certified copy of the bond, he bas no power over them at all. The proceedings under which judgments by motion are rendered are summary, and must be strictly construed. Erkman v. Carnes, 101 Tenn., 136 (45 S. W., 1067) ; Wingfield v. Crosby, 5 Cold., 241. The justice of the peace having been without jurisdiction as to the sureties, the circuit court could acquire none as to them'by appeal. Nor could it acquire jurisdiction of them by the introduction of a properly certified copy of the bond in that court; and this because, its jurisdiction of the cause was only appellate, and not original. It is axiomatic that the appellate jurisdiction of a court in any given case is dependent upon the existence of
It follows that the first assignment of error must be sustained.
The second assignment of error must also be sustained. His honor, the circuit judge, committed error in instructing the jury that they could render judgment as for an insufficient return, and in stating to them that the motion covered this ground, when in fact it covered only the ground of nonreturn. Watkins v. Barnes, 1 Sneed, 202.
The third error assigned is not well taken, there being some evidence to sustain the averment of non-return of the execution; but this does not alter the result.
Let a judgment be entered reversing the judgment of the court below, and remanding the cause for a new trial as to Morgan, but dismissing it as to the sureties. The defendant in error will pay all the costs of this court.
