Teasdale & Co. v. Manchester Produce Co.

'Wilkes. J. In this case a preliminary motion was made before tbe calling of tbe case, to strike it from tbe docket,, because no appeal was ever granted in tbe Court below. Tbe entry upon tbe minutes bearing upon tbis feature of tbe case is in these words: “Plaintiffs moved the Court for a new trial' and in arrest of judgment, and after argument of counsel tbe Court is pleased to overrule said motion, from which plaintiff prays an appeal to tbe next term of tbe Supreme Court at Nashville, Tenn., and tbe plaintiffs are allowed and granted thirty. days in which to make their appeal bond for costs, to which plaintiffs except.” [269] Tbis entry was made May 16, 1899. On May 80, 1899, an appeal bond was executed and filed which recites that the plaintiffs had prayed and obtained an appeal, etc. It has been held in a number of reported cases that an appeal, to be effective, must not only be prayed but granted, and the minute entry must so show. Clark v. Lowery, 1 Tehn., 313; O’Reiley v. Zollicoffer, 4 Yer., 299; Cooley v. Julin, 5 Yer., 439; Lawler v. Howard, Meigs, 15; Glass v. Stovall, 10 Hum., 453; Hall v. Bewley, 11 Hum., 106; Craighead v. Rankin, 6 Bax., 131; Bailey v. The State, 11 Pickle, 391; Snyder v. Summers, 1 Lea, 482; Parker v. Swan, 1 Hum., 80. And a recital in an appeal bond that the appeal had been prayed and granted to this Court will not suffice as a substitute for the minute entry of record. O’Reiley v. Zollicoffer, 4 Yer., 298; Childress v. Marks, 2 Bax., 12; Sellars v. Sellars, 17 Pickle, 606. A different rule prevails in appeals from Justices of the Peace, and in such appeals the bond is prima facie evidence of the grant of appeal.4 Shannon, § 5990. A recital in a bill of exceptions that an appeal -has been granted, is not sufficient. Sellars v. Sellars, 17 Pickle, 607. Nor is a statement in an agreement of parties, in the absence of [270] any entry or judicial grant of appeal. Cowan v. Hatcher, 48 S. W. Rep., 328. In the present case the record shows that an appeal was prayed, and that time was allowed to give bond, but it does not show that it was granted. The appeal must be dismissed. Appellant, however, recognizing the defect in the proceeding for appeal, has filed the record for writ of error, and given the necessary bond. The case therefore stands for hearing upon its# merits. The action is based upon a contract for the sale of a lot of dried apples. The contract was made wholly through letters and telegrams, and not through personal interviews. The validity of the contract, as well as its terms, depends upon the writings and not upon parol proof. The Court instructed the jury, in substance, that it must determine whether there was a contract, and what were its terms. This was error. The contract being wholly in writing, it was for the Court to construe the writing and determine whether there was or not a valid contract, and what were its terms. It is virtually conceded that this holding is a correct vievr of the law, but it is said that as a proper ■ result of the pleadings the merits of the case have been reached. There were four pleas filed by the defendant, the first two being in effect pleas of ' non as-sumpsit. The third denied any breach of the [271] contract. Tbe fonrtb plea virtually admits a breach of the contract by defendant, but sets up that it was first breached by the plaintiff. This plea was neither demurred nor replied to, and the insistence is that, not having been denied or controverted, it stands as confessed. It is provided ,bv the statute that matters not denied in each subsequent pleading shall be taken as admitted, as in ' case of pleas. Shannon, § 4650. ■ The contention of defendant is, that the plaintiff, by not replying to the fourth plea and denying it, admitted its truth, and this being so, the correct result was reached, since the plaintiff could not recover for defendant’s breach after he had committed the first breach, as that plea alleges. This, we think, is not a correct application of the law to the facts of the case. While it is true that in law cases matters nofi denied in the pleadings are held as admitted and confessed, it is also true that a judgment rendered when no issue has been joined is not a valid judgment, but is voidable if not a nullity. Doyle v. Smith, 1 Cold., 15; Mayfield v. Beech, 2 Sneed, 443; 11 Enc. Pleading & Practice, page 864. In this case there was no replication filed^ to the plea. The defendant should have taken judgment by default upon it, or required an issue to be joined on it, in order to have the benefit on the trial upon the issues joined upon the [272] other pleas. He cannot sustain the judgment of tbe Court upon a plea upon which no issue was required or joined, when a sufficient issue is raised by the other pleadings in the case. In such case the issue not replied' to must be considered as abandoned. The result is, the judgment of the Court below must be reversed, and cause remanded for a new .trial. Appellee will pay cost of appeal.