117 Tenn. 98 | Tenn. | 1906
delivered the opinion of the Court.
The defendant below met this contention with a denial, insisting that the former suit had not been dismissed when the present one was brought, but was still pending, and hence that the plaintiff below had not brought her case within the saving of Shannon’s Code, section 4446. The trial judge took this view of the matter, and sustained the motion for peremptory instructions in favor of the defendant below. The evidence bearing upon the point being uncontroverted, a judgment was thereupon rendered in favor of the defendant, and from this the plaintiff appealed to this court, and has here assigned errors.
There was no motion for a new trial made in the court below.
In the view we take of the case, only two questions are presented:
1. It appears, on suggestion of diminution of the record and a copy of the entry below offered by consent
The clerk of the circuit court, in making out the transcript, failed to embody this rule. The question arising is whether it was the duty of the clerk to copy this rule in the transcript in the present case without further order; that is, without a special order to that effect having been made in this case. We think it was his duty to do so. It was competent for the circuit court to malee the order in the terms in which it was expressed, and it follows that it was the duty of the clerk to obey it. Upon his neglect or disobedience for any cause, it was competent to supply the omission on a suggestion of diminution and the issuance and execution of a writ of cer-tiorari.
The result is, the judgment of the court below must be affirmed.
Prom the conclusion announced on this last point, Justices McAlister and Neil dissent.