Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-06-05
81 SUPREME COURT.
condensed Decisions Of TIE Supreme Court Of Tennes.
see, at Brownsville, Nay Term. 1889, Reported for
the Appeal" by X. Clay King, Esq.

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No. 26. Memphis Gas Company VS.. The
State. From the Court of County Com
missioners, sitting as the County Court o.
Shelby county.
This case arose on a petition by tht
Memphis Gas Company before the Shelby
County Commissioners to correct the as.
sessment of taxes on the Gas Company 81
far as the same imposes taxes on the gas
pipes of the Company, which run through
and under the streets of the city of Mem
phis. The Judgment below was against
the Gas Company, and the Company ap-
pealed to this Court.
Held: That the right to tax this prop
erty is claimed under Section 54l of the
Code, which provides that all saw, grist
and other mills, distilleries, breweries,
foundries, FORCES, establishments for min
ing, quarrying, making gins or carriages,
and other manufacturing establishments,
| shall be taxable. The term establish
ment," under this section of the Code, in
cludes all the usual and necessary appli-
ances for storing, measuring, weighing,
packing and delivering the manufactured
article after the process of manufacture is
completed. 1t is not essential that a par
ticular article or class of articles in order
to constitute a part of a mandatory,
should be actually employed in the pro-
cess of manufacture. The gas pipes,
1 LAAChAA AaAn III III BhDAAt vi NAhN
city, are the property Of the Gas Company,
and are parts of the manufacturing estab-
lishment, and as such property, taxable
under the said section of the Code.
Judgment below affirmed.
No. y. Mary Weigand vs.. n. Malatesta.
From the Memphis Municipal Court.
This was an action of forcible entry and
d~etainer by Malatesta against Weigand
| before three Justices of the Peace. The
Justices rendered judgment against Weig-
and for the possession of the premises,
but gave no Judgment for the rents or
damages. A writ of possession having is
sued upon this judgment, the defendant
Weigand, on petition to the Municipal
Court obtained a writ of certiorari with
supersedeas to quash the writ of posses
sion. The ground of the petition was the
alleged infancy of the defendant Weigand,
which was invalid. The petitioner Weig-
and gave bond in the penalty of $1,000 con-
ditioned to prosecute the certiorari with
effect, or in ease of failure to perform the
Judgment which should be rendered in the
case. The Municipal Court dismissed the
certiOrari, and thereupon called a jury to
assess the damages foFthe wrongful suing
out of said writ, who returned a verdict
for the plaintiff of 1888 80. The Court
then appointed a guardian al Item for the
defendant Weigands, and rendered judg-
ment against her and her surety in the
certiorari bond for the amount of the YER
dict and awarded a writ of restitution for
the possession of the premises = from
which action of the inferior Court the de-
PENDANT Weigand appealed to this Court.
The Code section 3l3I, provides that
upon dismissal of the certiorari for any
cause, the court shall enter up judgment
for the mount recovered in the inferior
court against the principal and the sure
ties to the prosecution bond with interest
and costs, without Femanding the
with a prOcedeHd0. SOnnes VS.. Hunter, 2
Head, 343; Hollins VS.. Johnson. 8 Head.
346; ROddy VS.. Bacon, 3 Cold, 253. But
in this case no recovery was had before
the Justices for any amount except for
costs. And there is no express statutory
provision for h e~mpanneling OF a jury
in the higher court to ascertain the plain
tiff's damages, as was done in this case,
when they were not recovered below.
The provision made by the Code, section
1868, for the assessment of damages in
cases brought up by eertiorari upon a
judgment in fOrcible entry n detainer,
applies to cases in which the writ is en-
ployed as a substitute for an appeal to
bring up the case fer trial on the merits,
and not to cases like the present where its
office is merely to correct a supposed error
in the issuance Of final process. In this
case the eertiorsri operates only on the
process attacked for the errors pointed
out in the petition. HOllins VS.. Johnson,
s Head, 3fG. By section 3l36 of the Code,
it is provided that in case the plaintiff in
the certiorari obtain relief IN final judg-
ment, the court may direct the jury try
ing the cause to assess his damages, etc.
In forcible entry and detainer, where
the certiorari operates to bring up the
whole case for trial, the defendant obtain
ing the writ is required TO give bond in
H. - - -
if the jury find that the plaintiff is enti-
tied to the possession, they shall find the
value of the rents during h time the
plaintiff has been kept out of the possess
sion, and judgment shall be given against
the defendant and his sureties for the
amount.
These statutory provisions are in pursu-
of a policy apparent throughout the
legislation of this State TO make a COM
settlement of the rights of the par
ties whenever it can be accomplished in
the pending proceeding, without turning
the parties to a second litigation in
order to complete the remedy. And the
provision above cited, that the Circuit
Court may render judgment for the
amount of the recoYery below, wen
though the writ of certiorari be dismissed,
shows that it was the intention of the
Legislature that whatever relief could be !
afforded should be e~lfeetuated in that
COurt without a p~r0cedeAdQ to the Court
Notwithstanding the apparent
want of jurisdiction in the Circuit Court |
TO render such judgment after the certio-
rari is dismissed.
The bond for the writ of certioIASi is re-
Iuired TO be conditioned to prOsdhte the
writ with effect, or perform the judgment
which shall be rendered in the cause.
The Circuit Court is required to render Il
inal judgment, and cannot remand the
with a pr0cedcRdO, and therefore if
10 power exists in the Circuit Court to
the damages of the plaintiff, and
,ender Judgment therefor, the plaintiff
must be RENTED to his common law ac-
ion, which would not be available upon
he bond, because that is conditioned not
or the payment of the damages or rent, |
for the performance Of the judgment
If the Circuit Court.
The power to emgaRnel a jury in cases
ike the present, is not given in express
by the statuteJ yet the power is
yiven to render a final judgment, and no
'emedy upon the statutory bond exists in
INV other court.
The Municipal Court did right in enter
ng up final Judgment on the bond. An
infant is liable as a trespasser for the rent
md damages during his unlawful occupa-
of the promises. Judgment affirmed.
No. 30. Hesse, Levy & Co., VS.. Page.
Page, by written lease, rented premises to
Jesse, Levy & Co. Afterwards on appIi-
alton to Page, by Hesse, Levy & Co,
Page promised to reduce the rent to a GER
ain snm. There was no further agreed
hange in the lease. After this Hesse,
1evy & Co. were sued for the whole rent.
Held: That a written lease may be can
elled, and a new contract of renting sub
by parol. But if the agreement
as in this case, that the landlord should
a part of the rent, then such a
romise is 1ttaiHHa pGcthn3 for want of con-
liberation, and the entire rem is collecta-
lie.
aACa7sNrc prarmrn