97 Tenn. 690 | Tenn. | 1896
This cause was regularly instituted in the Circuit Court of Polk County by the issuance of a summons, more than five days before the beginning of, and returnable to, the next term of that Court. The Sheriff into whose hands it came, executed it according to its tenor — that is, by summoning the defendant to appear at the term to which the writ was made returnable — but this service was made within five days preceding the beginning of that term. At this return term no steps were taken in the case. At the term next succeeding the one to which the defendant had been notified to appear, on motion of the defendant corporation, the Court quashed the writ and dismissed the suit. The ground for this action is stated in the order of the Court disposing of the writ' and suit, in these
We agree with the Circuit Judge, as all the facts appeared upon the face of the papers, that a motion was proper to raise the question of the legality of the service of process in this case. A plea is only essential where the face of the record does not disclose the facts relied upon as matters of abatement. 2 Bax., 228; 1 Head, 382.
This section was subsequently amended by the following Act, entitled “An Act to amend an Act passed in 1794, and a part of the tenth section:”
“Sec. 1. That hereafter all writs and other process, except subpoenas instanter, sent out and made returnable to any of the Circuit Courts of this State, shall, and may be, executed five days previous to the commencement or sitting of the Court to which the same may be made returnable.
“ Sec.. ,2. That so much of said Act as requires*694 process to be executed ten days previous to tbe term to wbicb the same may be made returnable, is, and the same is hereby, repealed.” See Acts 1837-38, Ch. 131, Secs. 1 and 2, p. 196.
Subsequently the Legislature passed an Act amending these two Acts, entitled ‘‘An Act to amend the Act of 1794, Ch. 1, and the Act of 1837-38, Ch. 131,” providing that all original or mesne process in civil suits issuing from the Circuit Courts, shall and may be issued five days before the commencement of the term to which such process is made returnable, and shall be executed in the manner and time as by law now directed. See Acts 1841, Ch. 10, p. 6.
Thus the law on this subject stood until the Code of 1858, when its makers, in bringing forward these old statutes, made a radical change in them, and embodied it in § 2830 of that compilation, corresponding with § 3535 of (M. & V.) Code. That section, which is the present law in this regard, is as follows: “All civil process in Courts of Law or Equity, except in cases otherwise provided in this Code, shall be returnable to the first day of the term next ensuing their issuance, if issued and served five days before such term. If issued or served within the five days, they shall be returnable to the first day of the succeeding term.”
It will thus be seen that the compilers of the Code saw proper to omit from this section the only part of the original and amendatory Acts on which the action of the trial Judge in this case can be
And we regard it as immaterial that the officer, in serving the process, read it to the defendant, and that, by its literal terms, it required him to appear to a term beginning less than five' days from the date of the service. While the Sheriff should return the writ to the next term, yet, the defendant is not bound to appear until the following term; but then he must appear, under the penalty of having a default taken against him.
It follows that the Circuit Judge was in error in sustaining the motion to dismiss, and the case is remanded for further proceedings.