Erkman v. Carnes

45 S.W. 1067, 101 Tenn. 136

Opinion

Wilkes, J.

The only question presented by the record is whether an officer is liable, on motion or in a summary proceeding, where he fails to execute and make due return of an attachment writ issued by a Justice of the Peace. Summary proceedings, being in derogation of the common law, only exist when authorized by statute, and such statutes muse be strictly construed. Powell v. Fowlkes, 5 Bax., 649; Williamson v. Burge, 7 Heis., 119; Voorheis v. Dickens, 1 Sneed, 348; Wingfield v. Crosby, 5 Cold., 241. There is no statute giving authority for a summary proceeding in a case like the present, and the party aggrieved can only resort to his suit or action at law, and is hot entitled to a motion, which is a cumulative remedy. The grounds for summary proceedings before Justices of the Peace are set out in the statute (Shannon, § 5979, subsecs. 1, 2, 3, 4), all of which relate to defaults made in regard to executions. Section 5368 provides a penalty for failing to execute and make return of any process, but, by the express words of the statute, it is confined to process issued from a Court of record, which a Justice’s Court is not.

We are of opinion the judgment of the trial Judge, in dismissing the action for want of jurisdiction in the Justice of the Peace to entertain a summary proceeding under the facts, is correct, and it is affirmed, with costs.