Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-10-23
SUPREME COURT OPINION.
KSoxyILLB, TENNESSEE, SEPTEMBER TERN, 1867.
THOMAS Il. GOODWILL, ArroRxEr CENTRAL EEPoRrEA.
a. r. CLOUD Administrator Houston seweil deceased
-. WILLIAM JONES

G. B. CLOUD Administrator Of Houston sewel, deceased
/ vs.. WILLIAM JONES
7is 4. An action CT trespsss to the person brousbt IN a.
Circuit OF Claiborne county by Houston se IN he
! ard Therressa Ann Jones. "s0h
original issued on the 18th day sf Nav 1sss
returnable to the September following The
returned day executed all the defendants and
me pain A. the return term, dismissed his suit as 70 the
Ce1rs to make William Jones a party defendant " 'l'
the a IA a ~ 1860 the Pantin appeared before
had gone beyond the limits State OF 50 sbscopds
not be served him praying for an Attachment
against his property Bond executed on the same
day the attachment issued which returned duly levied
on the real estate Of Jones.
At the May term 1885, plaintiff appeared and moved the
court further to dismiss his action James Day and VIII
liam Neal leaving the original standing against Their
ressa Ann Joes alone And at the plaintiff
ea ns aeafatlo against tho defendants theresa Ann
jones and William Jones AT the September term following
the death OF the plaintiff suggested the case revived
deceased we'll
At the January term, 1867 the planti dismissed hi.
ton Theresa Jones' and proceeded TO take Judo
ment by default against William JONES' ho as il appears
curry Of damages was awarded and before It's one
John p Bowen styling himself agent and guardian Of de-
fsndant appeared and fled his affidavit upon which he
moved the Court to set aside the judgment by default and 10
allow defence to tho action. The grounds assigned the az
hdavi for setting aside the Judgment by default are that he
under the impression until the day he filed his
affidavit that be had retained defendant but
be has just earned-slthough had conYersaon with
the counsel usually retained by hmhat they did not nm
defense put action It is further averred in
the affidavit that the defendant the action
was commenced and that justice demands that defense be
/ made
Court refused the application to set aside the Judgment
By default ard directed the execution Of the writ Of inquiry
a. the next term
Exceptions taken action Court in over
ruling the motion 70 set aside the judgment by default
the affidavit which il predicaed made part the
At the May term 1867 the writ inquiry was executed
and the damages assessed at SI0GO0.
Under this state OF facts the for error
s in error in nor tf JpI "a IL a ls tSi d9e gogrt
hs Tho
had no Jurisdiction Of the person of the defendant
lst, 1t is well settled practice Judgment by
default may be aside any time during the term al which
it is rendered. motion Of the defendant showing good
And it said in the Of the Bank of Tennessee
Tern and Merweathe 2sneed e9 that it no legal ground
another instead Of the defendant himself But mat
ter resting in the sound discretion Of the Court
be slow TO reverse on that account unless was apparent
that the discretion had been improperly or oppressvey
ercised
In this the affidavit by Bowen Who as we
have styles himself he agent and guardian OF this de-
in defence to the action but he wholly fails to disclose any
grounds Of defense whatever other than that the defendant
a minor at the commencement Of the suit.
Tie affidavit is singulary defective in its ayerments and
leaves the Court doubt both to the nature Of the defense
the minority of the defendant Neither clearly appears
1t is not enough that reasons shown why the Defend
failed to and defend he must also show hs he
good defense the action before the Court would
be authorized to set aside Judgment by default regularly
PENDANT although minor at the commencement of the suit
had not reached his majority at the time of the Judgment by
default
Had this been DONE difficult question would have
ded in this State and which we do not feel called upon now
determine.
presented This action, have seen, commenced by
original summons against fsur several parties as to all Of
declarations except theresa Ann Jones The
to the September 1865, when leave OBJ
tsinedo add the plaintiff error William jones'
TO the suit But steps taken either by supple
mental original attachment and publication,
bring him before the Court, until the January term 1866
upon the affidavit of the plantih made before Clerk
eff the Court and without revising the order to add another
party defendant attachment issued tested Of the
term and returnabe to the next succeeding term The at
taohment returned to the May term 1906 duly levied
the lands Of the party in error when both Therresa Ann
Jones William Jones formerly declared against.
Thus the stood until the January term 1861 when the
dismissed Thsrreesa Ann, and judgment by
default taken against the plaintih IN
Additional parties only be made BY leave Of the Court
upon such terms regard TO costs be imposed
other subsequent term such conditions the Court
may prescribe 50 as especially 70 perst deayCode sec 1Ios
additional defendant the Of the
ty without delay of obtaining supplemental process
bring him before the Court, which he continue from
term term with the regularity that would have
required Of him in case Original summons otherwise
suit to such additional defendant viii be discontinued
Armstrong vs. Harrison Head 979
The statute requires all amendments OF this character to be
especially to prevent delay andif other
than the appearance term on such conditions as to costs as
the Court may impose To give vitality and effect to an Or
when steps have been taken under ~ at the next term
revising would be to defeat the very object Of the
legislature and enable party who has obtained order at
one term TO make new parties supplemental pro-
any subsequent term to bring them without
follows this view Of the case, that the attachment
which upon its face shows it issued in the original cause
issued against the plaintiff in when he
ty the action and without order OF Court having vi
tally to make him a party defendant
The levy and publication under such circumstances in
iii in error and the Judgment by deSanIt was mere nnty
The plaintiff below having dismissed his action TO all the
defendants served with and through his neg
gence suffered be discontinued the plaintiff in error
"a t true I copy. : ''''''''1 ~ NILMGAN,
N. L. PATTERSON, Clerk.