Nichols v. Lebanon & Hartsville Turnpike Co. , 128 Tenn. 541 ( 1913 )

Mr. Justice Williams

delivered the opinion of the Court.

This action originated before a justice of the peace, and by appeal was tried in the circuit court before a jury; the judgment based upon its verdict being against Nichols, who appealed to the court of civil appeals. There cast, he has petitioned for a writ of cer-tiorari to bring the cause into this court for review.

An error assigned in the court of civil appeals and • in the petition referred to is: That the circuit court erred in overruling Nichols ’ motion in arrest of judgment, the ground of which motion was that the war-' rant on which the case was tried in the circuit court did not state a cause of action.

The warrant is as follows :

“Summons J. 0. Nichols, Bob Nichols, and Ross Nichols to appear before me or any other justice of the county to answer Lebanon and Hartsville Turnpike Company for the use of H. P. Kinney in a civil action on account under five hundred dollars. This 4th day of December, 1912.

" “H.E.Doss, J.P.”

It will he noted that the warrant is in strict.accord with the form prescribed by Code (Shannon) section 5958, which is as follows:

‘ ‘ Summons A. B. to appear before me, or some other justice of the peace for said county, to answer C. D. in a civil action by note [or upon an account, or otherwise, as the case may he], under- dollars. This -day of-, 19 — , E. F., Justice.”

The petitioner, Nichols, cites and relies on the cases of Railroad v. Flood, 122 Tenn., 56, 70, 113 S. W., 384, and Railroad v. Davis, 127 Tenn., 167, 154 S. W., 530. The actions begun by warrants of justices of the peace in the two cases cited were for damages arising out of torts, and it was held that they failed to carry, to the defendants sued, notice of their claimed wrongful acts, which would enable them to prepare for trial. The. reasoning -underlying those cases is not applicable in actions before a justice, of the peace which are based on contracts or transactions giving rise to indebtedness, as by note or account, in respect of which the defendant may fairly be assumed to have had knowledge, and therefore not to be left without notice of that for which he is called to answer.

The Code form is by the legislature made sufficient in so far as it particularizes, and, as seen, the Code section quoted provides specifically that a summons to answer in a civil action before a justice of the peace based “upon an account” shall suffice as a commencement of the suit.

No such particularity in specification is employed in the Code form in respect of actions for damages for tortious acts, and such were involved in the two cases relied on for reversal.

In the Flood Case, Mr. Justice Shields, in delivering the opinion of the court, cited with approval Watkins v. Kittrell, 3 Baxt., 38, 42, in which the summons or warrant recited as the ground of the action, “a debt due by a constable’s receipt;” and Judge McFarland, in reference to it, said, “This clearly gave notice to the defendant what the cause' of action was, what transaction was to be contested. ’ ’ It therefore appears that the court in the Flood Case must have had in mind the distinction which we here take. It at least reaffirmed Watkins v. Kittrell, which certainly concludes petitioner in his claim of error.

The court of civil appeals so ruled. .Writ denied.