White v. Lea

77 Tenn. 449

• Court: Tennessee Supreme Court
• Decided: September 15, 1882
• Status: Published

Opinions

DeadeRICK, C. J.,

delivered the opinion of the court.

The bill in this case was filed to enjoin two judgments of a justice of the peace of Hamilton county, rendered against them and one H. C. Plawkins, for $81 and $106. The warrant was issued to Hamilton county, against Howard W. Smith and said Hawkins, White and Depue, and one Butt, as partners. It appears to have been executed in Hamilton county on Hawkins only, the other defendants not being found, and the complainants being residents of Knox county.

At the time of the issuance of the original warrant to Hamilton county, a counterpart, so-called, was issued in each case to be served on the complainants in Knox county. These last named warrants -were not exact counterparts of the originals. They are issued only against White and Depue, the complainants, but bear the same dates as their originals, and recite the same causes of action, and summon the defendants to appear at the same times and places designated in the originals. And upon the face of each it is noted, that it is the counterpart of a warrant issued to Hamilton county.

The bill is filed alleging that the justice's judgments were void, and praying that. they be perpetually enjoined. Upon demurrer, the bill was dismissed, and complainants have appealed to this court.

Literally, a counterpart is a duplicate or copy of the original summons or warrant; and in strictness it ought to be so made out by the clerk or justice, and the fact noted on the process, that it is a counterpart, and the names of the parties upon whom it is to be served, also stated. Such, we think, is the usual and proper practice in such cases. It is the purpose of such process, like the original, to give the defendant notice that a suit has been ’ commenced against him, and to notify him of the cause of action, and the time and place at which he was required to appear.

The facts in this case are such as authorize a justice to issue a counterpart, and the material and controlling question is, has this been done? The objection is that the counterpart does not show that the complainants were jointly sued with the other parties named in the original warrant. And in strictness this ought to have appeared. But the warrant executed' upon complainants does show, upon its face,- that it is a counterpart and not an original writ, and in legal effect declares that there are other parties sued upon original, process, although their names are not disclosed.

We do not think, therefore, that the process served upon the complainants, or the judgment of the justice rendered against them, was void. In view -of the liberal construction given to justices’ proceedings, we are of opinion that the chancellor’s decree dismissing complainants’ bill was correct, and affirm it.