Mid-State Trust IV,               )
                                  )
      Plaintiff/Appellee,             )    Appeal No.
                                  )   01-A-01-9703-CV-00145
v.                                )
                                  )   No. 4887
Randall W. Swift,                 )

      Defendant/Appellant.
                                  )
                                  )                  FILED
                                                        July 9, 1997

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk

                      COURT OF APPEALS OF TENNESSEE

                      MIDDLE SECTION AT NASHVILLE


     APPEAL FROM THE CIRCUIT COURT OF CHEATHAM COUNTY

                       AT ASHLAND CITY, TENNESSEE


             THE HONORABLE LEONARD W. MARTIN, JUDGE




RANDALL W. SWIFT, PRO SE
1107 Nettie Drive
Ashland City, Tennessee 37015


CRAIG R. ALLEN, ESQ.
Foster, Foster, Allen & Durrence
515 Pioneer Bank Building
801 Broad Street
Chattanooga, TN 37402
      ATTORNEY FOR PLAINTIFF/APPELLEE




                        REVERSED AND REMANDED




                                           SAMUEL L. LEWIS, JUDGE
                                      OPINION

      This is an appeal by defendant/appellant, Randall W. Swift, from the decision
of the Cheatham County Circuit Court dismissing his appeal from the general
sessions court. The facts out of which this matter arose are as follows.


      Swift executed a promissory note and deed of trust in favor of Jim Walter
Homes, Inc. (“JWH”) in August 1991. The deed of trust gave JWH a security interest
in a piece of property located in Cheatham County and owned by Mr. Swift. JWH
subsequently assigned its security interest to plaintiff/appellee, Mid-State Trust IV.


      Mid-State foreclosed on and purchased the property on 28 August 1996. Mr.
Swift remained on the property after the foreclosure proceedings. Mid-State filed a
detainer action against Mr. Swift in the general sessions court when Mr. Swift refused
to vacate the premises. Mr. Swift failed to appear at the trial, and the general sessions
court entered judgment on 23 September 1996 granting Mid-State writ of possession
and ordering Mr. Swift to vacate the property in ten days.


      Mr. Swift attempted to appeal the general sessions judgment on 3 October
1996. He filed an appeal bond, a pauper’s oath in lieu of appeal bond, and an
affidavit of indigency. Mr. Swift failed to sign the appeal bond or to list a surety. On
6 November 1996, Mid-State filed a motion to dismiss or, in the alternative, to
reschedule the trial date. Mid-State argued Mr. Swift “failed to comply with the
applicable detainer statutes in that he . . . failed to file a proper appeal bond with
surety as required by Tennessee law.” The court agreed with Mid-State’s argument
and dismissed the appeal by order entered 4 December 1996. Mr. Swift filed his
notice of appeal to this court on 31 December 1996. Mid-State filed a motion to
dismiss the appeal on 12 May 1997. Mid-State claimed Mr. Swift failed to comply
with Rules 24(c) and (d) of the Tennessee Rules of Appellate Procedure and this court
should not consider his brief pursuant to Rule 13(c) of the Tennessee Rules of
Appellate Procedure.


      It is the opinion of this court that the motion to dismiss should be overruled and
the case decided on the merits. “[T]he overall intent of the rules is to allow cases to


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be resolved on their merits. A court’s construction and application of the rules should
further that intent and should enhance, not impede, the search for justice.” Johnson
v. Hardin, 926 S.W.2d 236, 238-39 (Tenn. 1996). In Johnson, the Tennessee
Supreme Court determined the court of appeals erred in dismissing an appeal and
denying a motion to file a late designation of a partial transcript when all the parties
were aware of the basis of the appeal and a full transcript was not necessary to convey
the issues. Id. at 239. The facts of this case are similar. The parties are aware that
the issue before the court is whether the trial court properly dismissed the appeal for
failure to file a proper bond. In addition, there is no need for a transcript or statement
of the evidence as all the necessary proof is available from the technical record.
Finally, this court has denied motions to dismiss for failure to comply with Rule 24(d)
in the past. The court has waived the requirments of Rule 24(d) pursuant to Rule 2
and held that the court should decide the case on the technical record alone. See
Barnes v. Miller Med. Group, No. 01-A-01-9512-CV-00549, order (Tenn. App. 21
Feb. 1996). Such is an appropriate result in this case as well. It is also the opinion
of this court that Mid-State’s argument regarding Rule 13(c) must fail. Mid-State
argues that “[t]he issues raised by [Mr. Swift] in his brief are completely outside the
record and should not be considered pursuant to T.R.A.P. 13(c).” Although Mr. Swift
failed to enumerate specific issues in his brief, he did address certain issues in his
argument. He addressed the issue of whether the foreclosure was proper and the issue
of whether he properly filed the bond. This court may not address the first issue
because the order of foreclosure is not properly before this court. We may, however,
resolve the second issue the facts of which are not outside the record. Neither Mr.
Swift’s failure to comply with Rules 24(c) and (d) nor his overzealous attempt at
bringing forth the issues on appeal merit dismissal of the case. Thus, Mid-State’s
motion to dismiss is hereby overruled.


      Moving on to the merits, there are two statutes relevant to the issue of whether
the trial court properly dismissed Mr. Swift’s appeal. The first applies to detainer
actions specifically and provides:
             (b)(1) If the defendant pray an appeal, then, in that case, the
      plaintiff shall execute bond, with good and sufficient security, in double
      the value of one (1) year's rent of the premises, conditioned to pay all
      costs and damages accruing from the wrongful enforcement of such writ,
      and to abide by and perform whatever judgment may be rendered by the


                                            3
       appellate court in the final hearing of the cause.
Tenn. Code Ann. § 29-18-130(b)(1) (Supp. 1996). The second applies to civil actions
in general and provides:
             (a) Any civil action may be commenced by a resident of this state
       without giving security as required by law for costs and without the
       payment of litigation taxes due by
             (1) Filing the following oath of poverty: . . .
       and
             (2) Filing an accompanying affidavit of indigency as prescribed
       by court rule.
Tenn. Code Ann. § 20-12-127 (Supp. 1996).


       Mid-State argues Mr. Swift failed to comply with Tennessee Code Annotated
section 29-18-130(b)(1), but the fact is that section does not require Mr. Swift to do
anything. Instead, the section requires Mid-State, not Mr. Swift, to file an appeal
bond. The section clearly states that the plaintiff, Mid-State, must execute a bond to
cover all costs and damages accruing from the wrongful enforcement of the writ of
possession if the defendant, Mr. Swift, pray an appeal.1


       Therefore, the decision of the trial court is reversed and the case is remanded
to the trial court for any further necessary proceedings. Costs on appeal are taxed
against plaintiff/appellee, Mid-State Trust IV.




                                                    __________________________________
                                                    SAMUEL L. LEWIS, JUDGE



CONCUR:


________________________________
BEN H. CANTRELL, JUDGE


________________________________
WILLIAM C. KOCH, JR., JUDGE




       1
          But see Tenn. Code Ann. § 29-18-130(b)(2) (Supp. 1996) (requiring the defentdant/
tenant to execute the bond when the defendant appeals an adverse decision in a detainer action
invovling a landlord and tenant).

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