Railroad v. Maxwell. SOUTHERN RAILWAY COMPANY v. ARTHUR MAXWELL, Administrator. (Knoxville. September Term, 1904.) 1. PAUPER OATH. Nonresident qualified here as personal representative may sue upon. A nonresident qualified in this State as the personal representative of a person dying in or leaving assets or property in this State may prosecute a suit in this State as such personal representative, on the pauper oath prescribed for personal representatives. (Post, pp. 468-473.) Code cited and construed: Sec. 4928 (S.); sec. 3912 (M. & V.); sec. 3192 (T. & S. and 1858). Acts cited and construed: 1897, ch. 133; 1901, ch. 126; 1903, ch. 501. Case cited and approved: Lisenbee v. Holt, 1 Sneed, 42. Cases cited, distinguished and approved: Smith v. Railroad, 89 Tenn., 664; Railroad v. Thompson, 109 Tenn., 343; Fawcett v. 2. STATUTES. Repealed or amended by implication. A statute not reciting the title or substance of the act to be amended or repealed cannot be held good as a technical amendatory act, nor valid as a direct repealing act; but it may be treated as an independent act, and so it may, by implication, operate as a repeal of former acts with which it may be inconsistent, so far as inconsistent therewith. (Post, p. 471.) Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644; Zickler v. Bank & Trust Co., 104, Tenn., 227. Railroad v. Maxwell. 3. PERSONAL INJURIES. Declaration for wrongful death, not alleging a widow, next of kin, or beneficiaries, states no cause of action. A declaration in an action by a personal representative to recover damages for the wrongful death of the decedent, which fails to allege that there is a widow, next of kin, or beneficiaries, to take the recovery, states no cause of action. 473.) (Post, p. Cases cited and approved: Railroad v. Pitt, 91 Tenn., 86; Love v. Railroad, 108 Tenn., 104. 4. ARREST OF JUDGMENT. After verdict for failure to state any cause of action. Where the declaration, in an action by a personal representative to recover damages for the wrongful death of the decedent, states no cause of action, because of its failure to show that there is a widow, next of kin, or beneficiaries to take the recov⚫ery, the defect is not cured by the verdict, and may be taken advantage of by motion in arrest of judgment after verdict, though there was no demurrer for such defect. (Post, pp. 473-478.) Cases cited and approved: Greer v. Bumpass, M. & Y., 94; State v. Aikin, 7 Yer., 268; Shelton v. Bruce, 9 Yer., 24; Knott v. Hicks, 2 Hum., 162; Sheppard v. Kindle, 3 Hum., 80; Baxter v. Erwin, 1 Tenn. Cas., 113, 115, Turnpike Co. v. Yates, 108 Tenn., 428430. 5. PLEADING AND PRACTICE. Declaration defectively stat ing a good cause of action is aided by verdict. A declaration which states a good cause of action, although defectively, will be aided by the verdict; for, where the omissions are not so serious or vital as to leave the declaration emasculated of the power to convey a cause of action, the court will presume, after verdict, that the missing matter was supplied by the evidence. (Post, p. 476.) 113 Tenn-30 Railroad v. Maxwell. Cases cited and approved: Anderson v. Read, 2 Ov. 205-208; Goodloe v. Potts, Cooke, 399; Stanley v. Brit, M. & Y., 222; Anderson v. Donelson, 1 Yer., 197-199; Shelby v. Hearne, 6 Yer., 512-514; Rogers v. Love, 2 Hum., 417-420; Woodson v. Moody, 4 Hum., 303-307; Brown v. Parks, 8 Hum., 294-297; Cannon v. Phillips, 2 Sneed, 191; Gas Co. v. Williamson, 9 Heis., 314; Morriss v. Bowers, 58 S. W., 328. 6. SAME. Same. Defective statement of a good cause of action is cured by verdict, but statement of no cause of action is not cured by verdict. The rule that "if a pleading contains a defect, either in substance or form, which would have been fatal on demurrer, yet if, on trial, the issue requires proof of the fact so defectively stated or omitted, the defect is cured by the verdict," is perfectly sound and intelligible, when applied to the defective statement of a good cause of action; but when applied to statements which set forth no cause of action, is both unsound and unintelligible. (Post, pp. 476, 477.) 7. SAME. Same. Same. Omitted averments in declaration showing good cause of action defectively stated, supplied from the other pleadings. Where the declaration shows a good cause of action defectively stated, if the omitted averments or facts are found in the pleas of the defendant, or are necessarily inferable from the pleadings taken in their entirety, they will be supplied to the declaration, and the judgment will not be arrested after verdict, but if there is no cause of action appearing in the pleadings, there is no lawful issue, and, therefore, no valid verdict. (Post, pp. 477, 478.) Cases cited and approved: Mosley v. Matthews, Meigs, 578; Mayfield v. Beech, 2 Sneed, 443; Trabue v. Higden, 4 Cold., 620; Cherry v. Smith, 10 Heis., 389-392. Railroad v. Maxwell. 8. STATUTES. Title or substance of law sought to be amended is not recited by reference to it in Shannon's Code or that of Milliken and Vertrees. A statute purporting to amend a certain section of Shannon's Compilation of the Statutes of Tennessee, or in Milliken and Vertrees' Compilation, is unconstitutional, because it does not recite the caption or substance of the act to be amended. pp. 479, 480.) (Post, Code cited: Secs. 3074-3076, 4025 (S.); sec. 3130 (M. & V.); sec. 2291 (T. & S. and 1858). Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Burnett v. Turner, 87 Tenn., 129; Railroad v. State, 110 Tenn., 598, 618. Acts cited and held unconstitutional: 1899, ch. 213; 1903, ch. 43. 9. ARREST OF JUDGMENT. Suit dismissed where motion in, is sustained by supreme court. Where the motion in arrest of judgment is sustained by the supreme court, the suit will be dismissed with costs. 480.) (Post, p. Case cited and approved: McMinnville v. Stroud, 109 Tenn., 569, 571. FROM WASHINGTON. Appeal from the Law Court of Johnson City.-JESSE L. ROGERS, Special Judge. KIRKPATRICK, WILLIAMS & BOWMAN, for Railroad. Railroad v. Maxwell. S. E. MILLER and HARR & BURROWS, for Maxwell. MR. JUSTICE NEIL delivered the opinion of the Court. This action was brought in the law court at Johnson City by the appellee to recover damages for the killing of his intestate, J. W. Ball, on the line of the railway company. There were verdict and judgment for $2,500 in favor of the appellee, from which the appellant company, after the overruling of a motion for a new trial, and also a motion in arrest of judgment, prayed an appeal to this court, and has here assigned three errors to the action of the court below. In the view we take of this case, it will be necessary to consider only two of the errors assigned. The first assignment necessitates a construction of chapter 501, page 1344, of the Acts of 1903. The question made upon this act in the present case is whether a nonresident administrator of the estate of a person dying in this State, or leaving assets or property in the State, and appointed by the courts of this State, can prosecute a suit in this State on the pauper oath. The defendant in error is a citizen of the State of Virginia, but qualified as administrator here, and brought the present suit upon the pauper oath. In the court below, a motion was made to dismiss the suit on this ground, or for want of a prosecution bond, which motion was overruled by the court. To test the correctness of this ruling, the first assignment of error was filed. |