Nashville, Chattanooga & St. Louis Railway Co. v. Davis ex rel. Davis

| Tenn. | Dec 15, 1912

Mr. Justice Buchanan

delivered, the opinion of the; Court.

One of the assignments of error upon the petition for certiorari raises the question that the railway company Sn the trial court moved in arrest of judgment upon the' ground that the warrant issue by. the justice of the peace before whom this suit was instituted stated upon its face no cause of action. The warrant is in these words:

“State of Tennessee, Maury County.

“To any Lawful Officer to Execute and Return:

“Summons Nashville, Chattanooga & St. Louis Railway Company, a corporation doing business in the State of Tennessee, to appear before me or some other justice of the peace of said county, to answer W. T. Davis, next friend of Lonnie Davis, a minor child, in a civil suit upon damages for personal injuries.

“Under §500. This 10th day of January, 1912.

“R. H. Guest, Justice of the Peace.”

We think the motion was well taken, and should have been sustained. Railroad v. Flood, 122 Tenn., 56" court="Tenn." date_filed="1908-04-15" href="https://app.midpage.ai/document/memphis-street-railway-co-v-flood-8300638?utm_source=webapp" opinion_id="8300638">122 Tenn., 56, 113 S. W., 384, and authorities there cited.

The only material difference between the warrant in judgment in the Flood Case, supra, and the warrant here, is that the warrant in this ease contains the words “for personal injuriesbut, notwithstanding the use of those words, it is apparent that the warrant here might be applied to an almost infinite variety of personal in-jaides. To illustrate;

It -would apply to such an injury while the person injured was riding as a passenger on defendant’s train while the train was in motion, or such injury sustained while the train was stationary, or such an injury while the person injured was not upon the train as a passenger, but was on, or so near to, the track of the defendant company as to be injured by a passing train, or such an injury inflicted when the person injured was not either upon the track or upon the train of the defendant company. Likewise, it would apply to an injury caused by the negligence of the servant or servants of the defendant company, or caused by an assault and battery by one of such servants or employees. It would apply to a personal injury committed in the county in which the suit was brought, and equally well to such an injury committed in any other county in the State, or in any other State, through which the defendant might run and operate a line of railroad and employ servants to transact its business.

And, , as . to the. time, ,it would apply to any time be fore the issuance of the warrant, whether one hour, one day, one week, one year, or more.

Upon the faqe of this warrant there is no notice to defendant of the time when, the place where, or the agency, by which the personal injury was committed. All that appears on its face is that defendant is sum* moned to appear before the justice of the peace to answer the suit or damages of the minor named, and that the damages claimed flow from personal injuries, '.'his much is no notice which will enable defendant to come with its witnesses prepared for trial.

The underlying reason of the law requiring the warrant as the leading process in a suit to “contain a brief statement of the cause of action sufficient to give the defendant reasonable notice of what he is called upon to answer” is that defendant may come to trial prepared for his defense; and this is a sound and just reason., Ind a warrant which does not, on its face, give such; notice, is void in law, and is not cured by verdict, although under it the defendant may appear and contestj the suit and be cast therein; and a motion in arrest of! a judgment founded upon such a warrant is the proper' step by which, after being so cast, the defendant may1 •test the validity of the warrant.

If, upon such test, it be found void, then everything! 'done under it is likewise void; for the warrant is the foundation of the suit and the judgment, and, if there, be no valid warrant, there can be no valid suit or judgment. Parris v. Brown, 5 Yerg., 267; Railroad v. Flood, supra; Manning v. Wells, 9 Humph., 746, 51 Am. Dec. 688; Odell v. Koppee, 5 Heisk., 90; Wood v. Hancock, 4 Humph., 467; Watkins v. Kittrell, 3 Baxt., 42; and other authorities cited in Railroad v. Flood, supra.

A warrant is either void or valid. There is no middle ground; there can be none. Mere imperfections of statement, or incorrect statement of the cause of action, do not invalidate. It may be far from the highest state of .the art of pleading, and yet be sufficient to give the defendant that “reasonable notice of what he is called npon to answer” which both law and justice demand.

Mere defects, imperfections, and incorrectness of statement, where, notwithstanding such as they may be, the warrant gives the notice required by law, are cured, by verdict; but verdict does not cure where no cause oi action is stated. In such case there is in law no warrant; and the so-called verdict based upon the supposed warrant is in law no verdict. The whole proceeding i¡ void; and the law so treats it from warrant to verdici and judgment Railroad v. Flood, supra, and authori ties cited.

The judgment of the court of civil appeals is reversed ajad su|i dismissed.