Failure to File Summons Dooms Tennesee Lawsuit

     (CN) – A Tennessee man who allegedly blasted an air horn on 40 nights outside his neighbors’ house is not subject to a default judgment, a state supreme court ruled.



     John Van Zyll and Ann Furlong sued their next-door neighbor, Phil Mitchell, for an alleged campaign of late-night noise on 40 non-consecutive nights.
     The plaintiffs also claimed that Mitchell shot a paintball gun at their house, kicked their fence to rile up their dogs, and aimed a real gun at Van Zyll.
     Two summonses were issued, but none were filed by the court. Mitchell did write a pro se letter stating that he would not attend a hearing.
     The trial court awarded an injunction and a default judgment to the plaintiffs.
     However, Mitchell made a motion to the trial court that he was never served, and the court set aside the judgment.
     The plaintiffs appealed the decision, arguing that the pro se letter constituted an appearance.
     But the Knoxville-based Tennessee Court of Appeals ruled in Mitchell’s favor.
     “If the facts alleged in the complaint are true, we have much sympathy for the plaintiffs’ situation. However, sympathetic facts are no substitute for service of process. In the absence of service on Mitchell, the trial court could not allow the plaintiff’s lawsuit to proceed, and neither can we,” wrote Judge Holly Kirby on the court’s behalf.

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