When I appeal a Tennessee General Sessions Court decision to Circuit Court, do I have to post a surety bond on top of paying the clerk's costs, and which court decides whether I'm too poor to pay?

Subject

Opinion No. 12-23, Appeals of General Sessions Court Decisions, February 23, 2012

Plain-English summary

Senator Kyle asked the AG two procedural questions about taking a civil case from Tennessee's General Sessions Court up to Circuit Court. The two statutes that crossed each other were Tenn. Code Ann. § 8-21-401(a) (which lets a party who pays costs at the time services are requested skip the security-for-costs requirement of § 20-12-120) and Tenn. Code Ann. § 27-5-103 (which separately requires a surety bond or a pauper's oath before a General Sessions appeal can be granted).

Q1: Does paying the General Sessions clerk's costs satisfy the appeal bond requirement?

No. The two statutes do different work. Tenn. Code Ann. § 8-21-401(a) excuses security only under § 20-12-120 (the cost-security rule for filing new actions). Tenn. Code Ann. § 27-5-103 is a separate, specific bond requirement to perfect an appeal. The General Assembly did not write an exception for the § 27-5-103 appeal bond when it added § 8-21-401(a), and silence on that point means no exception. State v. Peele (Tenn. 2001). So a party appealing must do both: pay any costs due and post the § 27-5-103 appeal bond (or take the pauper's oath).

Q2: Which court decides whether the appellant is indigent?

Both, in sequence. Tenn. Code Ann. § 27-5-103(a) says the General Sessions Court must approve a bond or accept a pauper's oath "before the appeal is granted." That is plain. Spencer v. Dixie Finance Co. (1959). Once the appellant takes the pauper's oath and the appeal is perfected, the case transfers to Circuit Court.

Ordinarily, Tennessee case law would say that any challenge to the truthfulness of a pauper's oath must be raised in the trial court where the oath was taken (here, General Sessions), or the appeal is treated as regular. Perry v. Carter (Tenn. 1949); Locke v. Smith Funeral Service (Tenn. 1942). But that general rule does not apply to General Sessions appeals, because under Tenn. Code Ann. § 27-5-108 the Circuit Court hears the appeal de novo: a brand-new trial. Doster v. State (Tenn. 1953); Cornelius (Tenn. Ct. App. 2009). The de novo treatment lets the Circuit Court review and, if appropriate, dismiss a pauper's action under Tenn. Code Ann. § 20-12-132 if the allegation of poverty appears to be untrue or the cause of action is frivolous or malicious. Fort v. Noe (Tenn. 1920) (decided under Shannon's Code § 4932, the predecessor to § 20-12-132).

So the practical sequence is:

• File the pauper's oath at General Sessions. That court reviews indigency.
• If the oath is accepted, the case transfers to Circuit Court for a new trial.
• The Circuit Court can revisit indigency at any time before trial under § 20-12-132. The burden is on the litigant to justify the oath.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tenn. Code Ann. § 27-5-103 and § 27-5-108 are largely stable, but procedural rules and indigency standards vary by local court. Anyone preparing an actual General Sessions appeal today should pull current statutes and local rules.

Background and statutory framework

General Sessions appeals. Tenn. Code Ann. § 27-5-103: before the appeal is granted, the appealing party must give bond with security for the costs of the appeal, or take the pauper's oath. Tenn. Code Ann. § 27-5-108: the appeal to Circuit Court is heard de novo.

Cost security in general. Tenn. Code Ann. § 20-12-120: no leading process issues from any court without security for costs, with limited exceptions. Tenn. Code Ann. § 8-21-401(a): a party who pays costs when services are requested satisfies § 20-12-120, but only § 20-12-120. The exception does not reach the separate appeal bond requirement of § 27-5-103.

Pauper's oath. A sworn statement of inability to pay costs. Allows litigation without prepayment of costs or posting of bond. The opposing party or the court sua sponte can challenge truthfulness.

Dismissal for false oath or frivolous action. Tenn. Code Ann. § 20-12-132(a) lets the court dismiss the action at any time before trial if it appears the allegation of poverty is probably untrue, or the cause of action is frivolous or malicious. § 20-12-132(b) places the burden on the pauper to justify the oath.

De novo review on appeal. A de novo trial is an entirely new trial on the entire case, conducted as if there had been no trial before. Doster (Tenn. 1953).

Common questions

Q: I paid the clerk's filing fees when I filed in General Sessions. Why do I now have to post a separate bond to appeal? A: Per this opinion, because the two requirements are different. § 8-21-401(a) addresses cost security for filing an action. § 27-5-103 is a separate requirement to perfect an appeal. Paying the first does not satisfy the second.

Q: Can I avoid the appeal bond by taking the pauper's oath? A: Yes. § 27-5-103 explicitly lets an appellant take the oath for poor persons in lieu of bond. If the court accepts the oath, you can appeal without bond. But your oath can be challenged.

Q: Who challenges my pauper's oath?
A: The opposing party can. The court can sua sponte. § 20-12-132 places the burden on you to justify the oath if challenged.

Q: If the General Sessions Court accepts my oath, can the Circuit Court still review it? A: Per this opinion, yes. Because Circuit Court review is de novo, the Circuit Court can review indigency anew and dismiss the action under § 20-12-132 if it concludes the oath is untruthful or the case is frivolous.

Q: Does this rule apply to criminal appeals from General Sessions? A: The opinion addresses civil appeals. Criminal procedure has its own appellate rules; consult a criminal defense attorney.

Citations and references

Statutes:

• Tenn. Code Ann. § 8-21-401(a)
• Tenn. Code Ann. § 20-12-120
• Tenn. Code Ann. § 20-12-132
• Tenn. Code Ann. § 27-5-103
• Tenn. Code Ann. § 27-5-108

Cases:

• Spencer v. Dixie Finance Co., 327 S.W.2d 301 (Tenn. 1959)
• Perry v. Carter, 219 S.W.2d 905 (Tenn. 1949)
• Doster v. State, 260 S.W.2d 279 (Tenn. 1953)
• Cornelius v. Department of Children's Services, 314 S.W.3d 902 (Tenn. Ct. App. 2009)
• Fort v. Noe, 233 S.W. 516 (Tenn. 1920)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-023.pdf

Original opinion text

Appeals of General Sessions Court Decisions
QUESTIONS
Lbl1. If a matter is appealed from General Sessions Court to Circuit Court, and the appealing party pays costs to the General Sessions Court Clerk as required by Tenn. Code Ann.
§ 8-21-401(a), must the party also submit a surety bond under Tenn. Code Ann. § 27-5-103 to perfect the appeal? Lbl2. If an indigent party appeals a General Sessions Court judgment to the Circuit Court, is the review and determination of the party's indigence made by the General Sessions or the Circuit Court judge? OPINIONS Lbl1. Yes, a party must provide a surety bond to perfect an appeal from General Sessions to Circuit Court. Lbl2. The examination of a party's indigence prior to the filing of an appeal may be conducted by the General Sessions Court pursuant to Tenn. Code Ann. § 27-5-103(a). However, after the appeal is filed and the case is transferred to the Circuit Court, any questions regarding a party's indigence may also be raised before the Circuit Court under Tenn. Code Ann. § 20-12-132. ANALYSIS The initial question is whether a party must provide a surety bond to perfect an appeal from General Sessions to Circuit Court when the party has already paid costs to the General Sessions Court clerk. The primary goal in interpreting the Tennessee statutory provisions governing this appeal process is "to ascertain and carry out the legislature's intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Premium Finance Corp. of America v. Crump Ins. Services of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). When the language of a statute is clear and unambiguous, "legislative intent is to be ascertained from the plain and ordinary meaning of the statutory language used." Gragg v. Gragg, 12 S.W.3d 412, 415 (Tenn. 2000). Further, "[w]hen construing statutes, the mention of one subject in a statute excludes other subjects that are not mentioned." State v. Peele, 58 S.W.3d 701, 704 (Tenn. 2001). Applying these principles to the question presented, this Office finds the General Assembly clearly intended that a party must provide a surety bond to perfect an appeal from General Sessions to Circuit Court. Initially, Tenn. Code Ann. § 27-5-103 expressly requires all persons, except indigents, to post a security bond before an appeal from General Sessions Court This requirement is not mitigated by Tenn. Code Ann. § 8-21-401(a), which only relieves a party under defined circumstances from posting surety under Tenn. Code Ann. § 20-12-120, If a party, other than a party who initiated a proceeding under a pauper's oath, pays costs at the time the services are requested, such payment shall be deemed to satisfy the requirement for security to be given for costs, pursuant to § 20-12-120. Thus Tenn. Code Ann. § 8-21-401(a) does not provide an exception for the surety bond requirement set forth in Tennessee Code Annotated § 27-5-103 for perfecting an appeal from General Sessions to Circuit Court. Because the General Assembly did not specifically provide an exception to the surety requirement for perfecting an appeal when it enacted Tennessee Code Annotated § 8-21-401(a), it must be assumed that no exception was intended. See State v. Peele,

2. The next question is whether the determination of indigence of a party seeking an
   appeal from the General Sessions Court to the Circuit Court is to be made by the General Sessions or the Circuit Court judge. Tenn. Code Ann. § 27-5-103(a) specifically states that "[b]efore the appeal is granted," the person appealing from General Sessions Court must provide 1 Tenn. Code Ann. § 20-12-120 provides that: No leading process shall issue from any court without security being given by the party at whose instance the action is brought for the successful prosecution of the party's action, and, in the case of failure, for the payment of court costs and taxes that may be awarded to the party, unless in cases and instances specifically Page 2 Applying these principles to the question presented, this Office finds the General Assembly clearly intended that a party must provide a surety bond to perfect an appeal from General Sessions to Circuit Court. Initially, Tenn. Code Ann. § 27-5-103 expressly requires all persons, except indigents, to post a security bond before an appeal from General Sessions Court is granted, stating in pertinent part: (a) Before the appeal is granted, the person appealing shall give bond with security, as hereinafter provided, for the costs of the appeal, or take the oath for poor persons. (b) An appeal bond filed by a plaintiff or defendant pursuant to this chapter shall be considered sufficient if it secures the cost of the cause on appeal. Tenn. Code Ann. § 27-5-103. This requirement is not mitigated by Tenn. Code Ann. § 8-21-401(a), which only relieves a party under defined circumstances from posting surety under Tenn. Code Ann. § 20-12-120, stating: If a party, other than a party who initiated a proceeding under a pauper’s oath, pays costs at the time the services are requested, such payment shall be deemed to satisfy the requirement for security to be given for costs, pursuant to § 20-12-120. Tenn. Code Ann. § 8-21-401(a) (emphasis added).1 Thus Tenn. Code Ann. § 8-21-401(a) does not provide an exception for the surety bond requirement set forth in Tennessee Code Annotated § 27-5-103 for perfecting an appeal from General Sessions to Circuit Court. Because the General Assembly did not specifically provide an exception to the surety requirement for perfecting an appeal when it enacted Tennessee Code Annotated § 8-21-401(a), it must be assumed that no exception was intended. See State v. Peele, 58 S.W.3d at 704.
3. The next question is whether the determination of indigence of a party seeking an
   appeal from the General Sessions Court to the Circuit Court is to be made by the General Sessions or the Circuit Court judge. Tenn. Code Ann. § 27-5-103(a) specifically states that “[b]efore the appeal is granted,” the person appealing from General Sessions Court must provide 1 Tenn. Code Ann. § 20-12-120 provides that: No leading process shall issue from any court without security being given by the party at whose instance the action is brought for the successful prosecution of the party’s action, and, in the case of failure, for the payment of court costs and taxes that may be awarded to the party, unless in cases and instances specifically excepted. Page 3 a surety bond or “take the oath for poor persons.” This language is plain and unambiguous, and requires that before an appeal is granted the General Sessions Court must approve a surety bond or have the appellant take the oath for poor persons. See In re Sidney J., 313 S.W.3d 772, 774 (Tenn. 2010) (holding when the wording of a statute is clear, courts should apply the plain meaning without complicating the task). See also Spencer v. Dixie Finance Co., 205 Tenn. 485, 491-492, 327 S.W.2d 301, 304 (1959) (stating that when a bond is filed or the pauper’s oath taken, then the General Sessions Court must transfer the case to the Circuit Court given the bond or oath is prima facie evidence that an appeal was prayed and granted). The corollary question then arises of when an opposing party, or a court sua sponte, can question the legitimacy of the pauper’s oath. Tennessee courts in addressing this question have found that the power to inquire into the truthfulness of the pauper’s oath only belongs to the trial court and “it must be invoked therein or the appeal will be treated as having been regularly taken.” Perry v. Carter, 188 Tenn. 409, 415, 219 S.W.2d 905, 908 (1949) (quoting Dann v. Moore, 22 Tenn. App. 412, 123 S.W.2d 1095, 1097 (1938)). See also Locke v. Smith Funeral Service Corp., 180 Tenn. 18, 21-22, 171 S.W.2d 272, 273 (Tenn. 1942). However, this general rule is not applicable to pauper’s oaths executed to appeal a General Sessions Court decision to Circuit Court because pursuant to Tenn. Code Ann. § 27-5-108 any appeal from General Sessions Court to Circuit Court is heard de novo. Tenn. Code Ann. § 27-5- 108(c). A “de novo trial” represents an entirely new trial on the entire case, conducted as if there had been no trial in the first instance. Doster v. State, 195 Tenn. 535, 539, 260 S.W.2d 279, 280 (1953); Cornelius v. Dept. of Children’s Services, 314 S.W.3d 902, 906 (Tenn. Ct. App. 2009). Thus, the fact that the appeal to Circuit Court in essence results in a new trail allows the Circuit Court to review and if appropriate dismiss a pauper’s action pursuant to Tenn. Code Ann. § 20- 12-132, which states: (a) If it is made to appear to the court, at any time before trial, that the allegation of poverty is probably untrue, or the cause of action frivolous or malicious, the action may be dismissed. (b) The burden shall be upon a pauper to justify the pauper’s oath. Tenn. Code Ann. § 20-12-132. Indeed this was the conclusion reached in the early case of Fort v. Noe, 144 Tenn. 337, 233 S.W. 516 (1920). In Fort, the Tennessee Supreme Court found the Circuit Court could review the validity of a pauper’s oath given in an appeal from a justice of the peace (now the General Sessions Courts). Id. at 516-17. The Court found such a review appropriate pursuant to Shannon’s Code § 4932, which is the predecessor statute to Tenn. Code Ann. § 20-12-132. Id. Accordingly, given an appeal from General Sessions Court creates a de novo trial in Circuit Court, the legitimacy of a pauper oath may be examined by either the General Sessions Court when an appeal is sought pursuant to Tenn. Code Ann. § 27-5-103(a) or, once an appeal is perfected, by the Circuit Court at the de novo trial pursuant to Tenn. Code Ann. § 20-12-132. a surety bond or "take the oath for poor persons." This language is plain and unambiguous, and requires that before an appeal is granted the General Sessions Court must approve a surety bond or have the appellant take the oath for poor persons. See In re Sidney J., 313 S.W.3d 772, 774 (Tenn. 2010) (holding when the wording of a statute is clear, courts should apply the plain meaning without complicating the task). See also Spencer v. Dixie Finance Co., 205 Tenn. 485, 491-492, 327 S.W.2d 301, 304 (1959) (stating that when a bond is filed or the pauper's oath taken, then the General Sessions Court must transfer the case to the Circuit Court given the bond The corollary question then arises of when an opposing party, or a court sua sponte, can question the legitimacy of the pauper's oath. Tennessee courts in addressing this question have found that the power to inquire into the truthfulness of the pauper's oath only belongs to the trial court and "it must be invoked therein or the appeal will be treated as having been regularly taken." Perry V. Carter, 188 Tenn. 409, 415, 219 S.W.2d 905, 908 (1949) (quoting Dann V. Moore, 22 Tenn. App. 412, 123 S.W.2d 1095, 1097 (1938)). See also Locke V. Smith Funeral Service Corp., 180 Tenn. 18, 21-22, 171 S.W.2d 272, 273 (Tenn. 1942). However, this general rule is not applicable to pauper's oaths executed to appeal a General Sessions Court decision to Circuit Court because pursuant to Tenn. Code Ann. § 27-5-108 any appeal from General Sessions Court to Circuit Court is heard de novo. Tenn. Code Ann. § 27-5- 108(c). A "de novo trial" represents an entirely new trial on the entire case, conducted as if there had been no trial in the first instance. Doster V. State, 195 Tenn. 535, 539, 260 S.W.2d 279, 280 (1953); Cornelius v. Dept. of Children's Services, 314 S.W.3d 902, 906 (Tenn. Ct. App. 2009). Thus, the fact that the appeal to Circuit Court in essence results in a new trail allows the Circuit Court to review and if appropriate dismiss a pauper's action pursuant to Tenn. Code Ann. § 20- 12-132, which states: Indeed this was the conclusion reached in the early case of Fort v. Noe, 144 Tenn. 337, 233 S.W. 516 (1920). In Fort, the Tennessee Supreme Court found the Circuit Court could review the validity of a pauper's oath given in an appeal from a justice of the peace (now the General Sessions Courts). Id. at 516-17. The Court found such a review appropriate pursuant to Shannon's Code § 4932, which is the predecessor statute to Tenn. Code Ann. § 20-12-132. Id. Accordingly, given an appeal from General Sessions Court creates a de novo trial in Circuit Court, the legitimacy of a pauper oath may be examined by either the General Sessions Court when an appeal is sought pursuant to Tenn. Code Ann. § 27-5-103(a) or, once an appeal is perfected, by the Circuit Court at the de novo trial pursuant to Tenn. Code Ann. § 20-12-132. Page 4 ROBERT E. COOPER, JR. Attorney General and Reporter WILLIAM E. YOUNG Solicitor General JOSHUA DAVIS BAKER Assistant Attorney General Requested by: Honorable James F. Kyle State Senator 9A Legislative Plaza Nashville, TN 37243-0028 State Senator Nashville, TN 37243-0028