Carney v. Murphy

61 Tenn. 340

• Court: Tennessee Supreme Court
• Decided: December 15, 1872
• Status: Published

Opinion

SNEED, J.,

delivered the opinion of the Court.

The Act of 1869-70, ch. 64, § 1, authorizes the writ of possession after judgment for^ plaintiff in actions of forcible entry and detainer, or of forcible detainer before three Justices, upon appeal by defendant, if the plaintiff will give bond as therein prescribed. Shank. Pev., 124.

The Act of 1871, ch. 66, amends the former Act so as to include cases of unlawful detainer. In this case o'f unlawful detainer the plaintiff had judgment before three Justices, from which the defendant appealed to the Circuit Court. In the 'latter tribunal there was a mistrial, and thereupon the plaintiff presented his bond as' required, and demanded a writ of possession, which was awarded. From this interlocutory judgment awarding the writ of possession the defendant appealed. The appeal was premature, and could only be granted . upon final judgment. The object of the statute was to give the plaintiff a quick and summary remedy to recover possession when unlawfully withheld, and the remedy of the defendant is upon the plaintiff’s bond, if upon final judgment it should turn .out that the writ was unlawfully awarded.

The appeal is dismissed and cause remanded.