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Vanderbilt Law Review

First Page

1050

Abstract

To one who has not inherited the Tennessee system of procedure and has not yet "first endured, then pitied, then embraced" it, it presents some startling contrasts. There is an astounding inter-mingling of the modern, which seeks to make procedure the servant of substance, with the ancient, that has in most jurisdictions been relegated to the legal attic or to a museum of procedural antiques. In an action instituted by warrant in the Court of General Sessions of Shelby County and tried de novo on appeal in the circuit court, the warrant is a summons and cannot serve as a pleading although it must allege a cause of action. The pleadings are oral; and the recital in the warrant of the contents of a note with profert of the note, and the physical insertion of the note in the record do not, in the absence of a bill of exceptions, enable the court of appeals to "consider" the note. To make it a part of the formal record, the process of oyer is necessary. The consequence of applying this outmoded doctrine of common-law pleading in conjunction with the accepted rules governing bills of exceptions was that the court was unable to deal with the real issue, and had to indulge in presumptions as to unrecorded amendments and unspecified evidence to sustain the decision of the circuit court.

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