Chapter 1
General Provisions

Part 1
Qualifications and Conduct of Office

18-1-101. Selection and general functions.

Each of the courts has a clerk, elected or appointed for a term of years, whose duty it is to attend the court and perform all the clerical functions of the court.

Code 1858, § 320 (deriv. Acts 1794, ch. 1, § 2); Shan., § 396; Code 1932, § 646; T.C.A. (orig. ed.), § 18-101.

Cross-References. Deputies and assistants, §§ 8-20-101 — 8-20-111.

Elected by the people, § 2-1-101.

Elections, time for holding, § 2-3-202.

Examination and filing of bond, §§ 8-19-201, 8-19-203.

Specific fees authorized, § 8-21-401.

State system of personnel administration, § 8-30-101 et seq.

Summary judgment against clerk, §§ 25-3-111 — 25-3-113.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, §§ 2-4.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. 691.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Attorney General Opinions. The clerk serving as the clerk of the Obion County Juvenile Court must attend the sessions of the court or provide a deputy clerk to do so; in addition, while the statute does not expressly provide that a clerk has a duty to record court sessions or to prepare or draft court orders, such duties fall within the “clerical functions” of a court within the meaning of the statute, OAG 00-112 (6/20/00).

Comparative Legislation. General provisions:

Ala.  Code § 12-2-90 et seq.; § 12-17-80 et seq.; § 12-17-140 et seq.

Ark.  Code § 16-20-101 et seq.

Ga. O.C.G.A. § 15-2-40 et seq.; § 15-6-50.

Ky. Rev. Stat. Ann. §§ 21A.030, 22A.040, 30A.010 et seq.

Miss.  Code Ann. § 9-3-13 et seq.; § 9-5-131 et seq.; § 9-7-121 et seq.

Mo. Rev. Stat. §§ 476.360, 483.010 et seq.; § 483.500 et seq.

N.C. Gen. Stat. §§ 7A-11, 7A-40, 7A-100 et seq.

Va. Code §§ 17-33 — 17-92.

Cited: State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884); Robertson v. Giant Food Market, Inc., 210 Tenn. 356, 358 S.W.2d 338, 1962 Tenn. LEXIS 446 (1962); West v. Vought Aircraft Indus., 256 S.W.3d 618, 2008 Tenn. LEXIS 412 (Tenn. June 10, 2008).

Collateral References. 15A Am. Jur. 2d Clerks of Courts § 2.

14 C.J.S. Clerks of Courts §§ 1-3, 33.

Clerks of Courts 3.

18-1-102. Residence and office.

The clerk of each of the courts shall reside in the county in which the court is held, shall keep an office at the county seat of that county, and give due attendance at the office for the performance of official duties.

Code 1858, § 4038 (deriv. Acts 1805, ch. 1; 1832, ch. 7, § 2); Shan., § 5850; Code 1932, § 10050; T.C.A. (orig. ed.), § 18-102.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 5.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. Place of Office.

The clerk and master of the chancery court, as well as the clerks of all the courts, is required to keep his office at the county seat. Ward v. Cullom, 42 Tenn. 353, 1865 Tenn. LEXIS 75 (1865).

Collateral References. 14 C.J.S. Clerks of Courts § 4.

18-1-103. Oath of office.

Each clerk of a court must also, before entering on the duties of the office, take an oath to support the constitutions of the United States and of this state, and to execute the duties of the office without prejudice, partiality or favor, to the best of the clerk's skill and ability; also, that the clerk has neither given nor will give to any person any gratuity, gift, fee or reward in consideration of the clerk's support for the office, and that the clerk has neither sold nor offered to sell, nor will the clerk sell, the clerk's interest in the office.

Code 1858, § 332 (deriv. Acts 1794, ch. 1, §§ 3, 50); Shan., § 408; Code 1932, § 658; T.C.A. (orig. ed.), § 18-103.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 632.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 5.

Cited: Alexander v. Marshall, 40 Tenn. 475, 1859 Tenn. LEXIS 134 (1859); Buford v. Cox, 71 Tenn. 518, 1879 Tenn. LEXIS 109 (1879); Johnson v. Brice, 112 Tenn. 59, 83 S.W. 791, 1903 Tenn. LEXIS 90 (1904); Wooley v. Madison County, 209 F. Supp. 2d 836, 2002 U.S. Dist. LEXIS 12297 (W.D. Tenn. 2002).

18-1-104. Deputy's oath.

Each deputy clerk shall take the oath appointed for the qualification of public officers, and an oath faithfully to discharge the duties of the office to the best of the deputy clerk's skill and ability.

Code 1858, § 333 (deriv. Acts 1794, ch. 1, § 72); Shan., § 409; Code 1932, § 659; T.C.A. (orig. ed.), § 18-104.

Cited: West v. Vought Aircraft Indus., 256 S.W.3d 618, 2008 Tenn. LEXIS 412 (Tenn. June 10, 2008).

NOTES TO DECISIONS

1. Deputy — Powers.

Under the statutes and decisions of this state, a deputy clerk can exercise all the powers of the principal clerk, and has full power to transact all the business of the clerk. Martin v. Porter, 51 Tenn. 407, 1871 Tenn. LEXIS 182 (1871); Harris v. State, 100 Tenn. 287, 45 S.W. 438, 1897 Tenn. LEXIS 114 (1897); Wilkerson v. Dennison, 113 Tenn. 237, 80 S.W. 765, 1904 Tenn. LEXIS 20, 106 Am. St. Rep. 821 (1904).

When, due to the absence of the regular judge, a special judge is elected by the attorneys of the court, a deputy clerk has authority to hold such election. Harris v. State, 100 Tenn. 287, 45 S.W. 438, 1897 Tenn. LEXIS 114 (1897).

2. Failure to Take Oath — Effect.

A person appointed deputy clerk in any manner, either by parol or writing, without qualifying by taking the prescribed oath or otherwise, may discharge the duties of the office as a de facto deputy clerk, though he is not a de jure officer, and his official acts will be valid as to the public and all third persons. Bonds v. State, 8 Tenn. 142, 8 Tenn. 143, 1827 Tenn. LEXIS 25 (1827); Atkinson v. Micheaux, 20 Tenn. 312, 1839 Tenn. LEXIS 53 (1839); Farmers & Merchants' Bank v. Chester, 25 Tenn. 458, 1846 Tenn. LEXIS 23 (1846); Kelley v. Story, 53 Tenn. 202, 1871 Tenn. LEXIS 345 (Tenn. Oct. 4, 1871); see Heard v. Elliott, 116 Tenn. 150, 92 S.W. 764, 1905 Tenn. LEXIS 14 (1905).

18-1-105. Duties.

  1. It is the duty of the clerk of each of the courts to:
    1. Sign all summons, writs, subpoenas, executions and process issued from the clerk's court, and endorse on the back thereof the date of issuance;
    2. Keep the several dockets required by law in the respective courts, and keep a rule docket, in which shall be entered the names of complainants and defendants in full, the names of attorneys, a minute of the date of issuance and return of process, with return on process, and a note of all orders and proceedings made at office;
    3. Not change the style of any cause, or papers in the cause, without permission of the chancellor or judge presiding, after the cause has been docketed;
    4. Keep an execution docket, in which shall be entered, within the time after the adjournment of each court prescribed for issuing executions, all judgments or decrees, in the order of their rendition, with the names of all the plaintiffs and defendants in full, the day and year of rendition, the amount of the recovery and the amount of costs, the character and number of the execution, the date of its issuance and to what county issued, the person to whom delivered and the date of delivery, the date and substance of the return and the dates and amounts of money paid into and paid out of the clerk's office;
    5. Keep a well-bound book, in which shall be entered the minutes of each day's proceedings during the session of the court, in the order in which they are made;
    6. Record in well-bound books, within six (6) months after the final determination of any suit or prosecution, such proceedings as the clerk is required by law to enroll;
    7. Make and keep indexes, direct and reverse, for all books and dockets required to be kept by the clerk;
    8. Keep all the papers, books, dockets and records belonging to the clerk's office, with care and security; the papers filed, arranged, numbered and labeled, so as to be of easy reference; and the books, dockets and records properly lettered; and allow parties to inspect the records free of charge;
    9. Attend court during the session of the court, with all the papers belonging to the term, so filed as to be of easy reference; keep in the courthouse, during the session, the execution docket for the two (2) preceding terms; and administer all oaths and affidavits in relation to causes or proceedings pending therein;
    10. On application and payment of the legal fees for a transcript, make out and deliver to any person applying for the transcript, a correct transcript, properly certified, of any paper or record in the clerk's office;
    11. Perform such duties in regard to the state and county revenue as are prescribed by law under this code;
    12. Issue execution within the time prescribed by §§ 26-1-201 — 26-1-203; and
    13. Perform such other duties as are, or may be, required of the clerk by law.
  2. In the place of well-bound docket books as required in subdivisions (a)(5) and (6), the clerks may, in the alternate, subject to the approval and under the direction of the judges of the respective courts, use a file card system whereby a card would be kept in a loose-leaf file drawer under lock and key, upon which card the necessary entries required by law to be put on the docket would be made.
    1. Any information required to be kept as a public record by a clerk of any court may be maintained on a computer or removable computer storage media in lieu of docket books or other bound books; provided, that the following standards are met:
      1. The information is available for public inspection, unless it is a confidential record according to law;
      2. Due care is taken to maintain the information as a public record during the time required by law for retention;
      3. All daily data generated and stored within the computer system shall be copied to computer storage media daily, and the newly created computer storage media more than one (1) week old shall be stored at a location other than at the building where the original is maintained; and
      4. The clerk can provide a paper copy of the information when needed or when requested by a member of the public.
    2. Nothing in subdivision (c)(1) shall be construed as requiring the clerk to sell the media upon which the information is stored or maintained.
    1. Install and maintain the Tennessee court information system (TnCIS) as provided by the administrative office of the courts (AOC) or a functionally equivalent computer system. The implementation of TnCIS in the offices of the court clerks shall be determined by the TnCIS steering committee and shall be based on the availability of adequate funding. The TnCIS software shall be made available to all offices of court clerks, including those offices previously automated and those offices within Shelby, Davidson, Knox and Hamilton counties.
    2. Notwithstanding any other law to the contrary, any court clerk office having a significant investment in an existing computer system shall not be required to acquire a new computer system, or to modify or convert an existing system to utilize the TnCIS software; provided, that those court clerk offices shall maintain a computer system that will report electronically all data required under Tenn. Sup. Ct. R. 11, § II, or otherwise statutorily mandated; and the AOC shall provide for the necessary data transfers with other state agencies as defined by the AOC or as statutorily required.

Code 1858, § 4040 (deriv. Acts 1794, ch. 1, §§ 9, 26; 1801, ch. 6, §§ 44, 46; 1831, ch. 8, §§ 1, 2; 1832, ch. 6, § 2); Acts 1879, ch. 114; Shan., § 5852; Code 1932, § 10052; Acts 1965, ch. 202, § 1; 1972, ch. 855, § 1; T.C.A. (orig. ed.), § 18-105; Acts 1984, ch. 772, § 2; 1992, ch. 797, § 1; 1999, ch. 486, § 3.

Cross-References. Clerk, clerical and administrative staff of board of commissioners, §§ 18-6-101 — 18-6-103.

Confidentiality of public records, § 10-7-504.

Conversion of money indictable without prosecutor, § 40-13-104.

Criminal procedure, destruction of records upon dismissal or acquittal, title 40, ch. 32, part 1.

False entries indictable without prosecutor, § 40-13-104.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 23.11, 24.31.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12; 8 Tenn. Juris., Criminal Procedure, § 4; 12 Tenn. Juris., Executions, § 3.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Authority to issue income assignment orders against child support obligors, OAG 99-008 (1/25/99).

The clerk serving as the clerk of the Obion County Juvenile Court must attend the sessions of the court or provide a deputy clerk to do so, OAG 00-112 (6/20/00).

Cited: Ellicott Mach. Corp. v. Vogt Bros. Mfg. Co., 267 F. 945, 1920 U.S. App. LEXIS 2253 (6th Cir. Ky. 1920); Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929); Dyer v. Dyer, 178 Tenn. 234, 156 S.W.2d 445, 1941 Tenn. LEXIS 50 (1941); Metro. Gov't of Nashville v. Affiliated Computer Servs., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 59622 (M.D. Tenn. July 17, 2008); State v. Houston, 328 S.W.3d 867, 2010 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 3, 2010).

NOTES TO DECISIONS

1. Dockets.

It is proper to make out three trial dockets, one for the court, one for the bar, and one for the clerk himself, and the clerk is entitled to 10 cents for entering each cause on each docket, making 30 cents for docketing each cause; but he is entitled to this compensation only for one time or term, except when the case is remanded to the rules or appearance docket. Nunnelly v. Smith, 63 Tenn. 310, 1874 Tenn. LEXIS 251 (1874); Hartman v. State, 2 Shan. 344 (1877).

2. —Magistrate's Warrants.

The law does not require the clerk to keep a docket for magistrates' warrants in bound over cases, and a fee charged for docketing the same should be disallowed by the court. Avery v. State, 66 Tenn. 328, 1874 Tenn. LEXIS 137 (1874).

3. —Supreme Court.

In the supreme court, it is necessary to make a trial docket for each judge, and new dockets for each term, and the clerk is entitled to compensation for docketing each cause on such dockets, or other dockets required by the court to be kept by him, for each term of the court that the cause is docketed. Hartman v. State, 2 Shan. 344 (1877).

4. Minutes.

The provisions of this section as to keeping of minutes are merely directory and not mandatory. Duboise v. State, 200 Tenn. 93, 290 S.W.2d 646, 1956 Tenn. LEXIS 380 (1956).

5. —Admissibility.

An entry made by the clerk, but never signed by the presiding judge, because of his sickness and death, showing the discharge of a jury in a capital case, by consent of the prisoner, is sufficient evidence of the fact of the discharge by consent. Moore v. State, 50 Tenn. 493, 1872 Tenn. LEXIS 23 (1871); State v. Farrow, 67 Tenn. 571, 1876 Tenn. LEXIS 7 (1876).

6. —Best Evidence.

When the minutes of a court of record are signed by a judge they become the highest evidence of what was done in court and, so far as they are records of judicial proceedings, they import absolute verity, and are conclusive unless attacked for fraud. Chrisman v. Metropolitan Life Ins. Co., 178 Tenn. 321, 157 S.W.2d 831, 1941 Tenn. LEXIS 62 (1942).

7. County Court — Court of Record.

The county court is a court of record. Johnson v. Nelms, 171 Tenn. 54, 100 S.W.2d 648, 1936 Tenn. LEXIS 60 (1937).

8. Clerk Signing as Surety.

The mere fact that a clerk and master signed a bond as surety is not ground for dismissing case when the bond is signed by other sureties. Walsh v. Rose, 29 Tenn. App. 78, 193 S.W.2d 118, 1945 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1945).

9. Effect of Other Law.

Sections 40-4001 — 40-4004 (now §§ 40-32-101 — 40-32-104), which provides for the destruction of certain court records, impliedly amends this section which heretofore has provided for the permanent retention of such records. Martin v. State, 519 S.W.2d 793, 1975 Tenn. LEXIS 715 (Tenn. 1975).

10. Deeding Property.

Fomer T.C.A. § 67-5-2706 did not expressly state that a clerk and master is empowered or directed to make a deed to a person who has exercised that individual's statutory right to redeem property; moreover, T.C.A. § 21-1-701, T.C.A. § 18-1-105, T.C.A. § 18-5-102, and T.C.A. § 18-5-103 did not provide that such a clerk was authorized to make a deed to one who had properly exercised his or her right of redemption, and therefore a writ of mandamus was properly denied in a case where a clerk and master refused to issue a fee simple deed to a redeemer in a tax sale since there was no mandate to do so, the action was taken on behalf of all of a decedent's heirs as tenants in common, and to do so would have conflicted with a trial court's order. Jones v. Anderson, 250 S.W.3d 894, 2007 Tenn. App. LEXIS 608 (Tenn. Ct. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 123 (Tenn. Feb. 25, 2008).

11. Failure to Comply.

Juvenile court had authority under T.C.A. § 29-9-104 to hold its court clerk in contempt of court and to incarcerate him to compel compliance with its lawful orders to produce court files to court referees. The finding that his noncompliance was willful under T.C.A. § 29-9-102(3) was supported by the evidence. In re Lineweaver, 343 S.W.3d 401, 2010 Tenn. App. LEXIS 75 (Tenn. Ct. App. Jan. 28, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 769 (Tenn. Aug. 25, 2010).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 21-27.

14 C.J.S. Clerks of Courts §§ 33-37.

Assistance, right of clerk of court to issue writ of. 21 A.L.R. 358.

Civil service laws as applicable to court clerks. 14 A.L.R. 637.

Records, discretion of clerk as to permitting examination or use of, by abstractor or insurer of title. 80 A.L.R. 773.

Removal of clerk, court's power to. 118 A.L.R. 171.

Clerks of Courts 1.

18-1-106. Judgment index.

  1. It is the duty of the clerk of the courts of record, and they are required, to keep a judgment index in which the name of each person, partnership, firm or corporation against whom a judgment or decree is rendered shall be entered under the proper alphabet or letter of the person, partnership, firm or corporation, giving the date, number of the cause and amount of the judgment.
    1. Each page of the index shall have five (5) columns, as follows:

      Name. Date. No. Cause. Amount.

    2. Two (2) sets of these columns may be on each page.

Acts 1897, ch. 27; Shan., § 5852a2; Code 1932, § 10054; T.C.A. (orig. ed.), § 18-106.

Cross-References. Cross index as to all parties in minute books and execution dockets, § 10-7-209.

Indexing of records, title 10, ch. 7, part 2.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 642.

Collateral References. 14 C.J.S. Clerks of Courts § 39; 21 C.J.S. Courts § 226; 49 C.J.S. Judgments § 128.

18-1-107. Notation as to party requesting process.

The clerks of court, in all cases where there are two (2) or more defendants in any case, civil or criminal, and a subpoena for witnesses or other process issues on application of part only of the defendants, shall mark thereon at whose instance the subpoena is issued.

Code 1858, § 4049 (deriv. Acts 1851-1852, ch. 178, § 2); Shan., § 5864; Code 1932, § 10066; T.C.A. (orig. ed.), § 18-107.

18-1-108. Authority.

  1. The clerks of the several courts have authority to:
    1. Administer oaths and take affidavits in all cases in which the authority to administer the oath is not confined to some other officer, and the power may be exercised either in vacation or term time;
    2. Take depositions to be read as evidence in any judicial proceeding in this or any other state;
    3. Take probate of the attendance of witnesses, and issue tickets, in vacation as well as term time, and in civil as well as criminal cases, at any time between the commencement and decision of a cause;
    4. Appoint deputies with full power to transact all the business of the clerk, such deputy first taking an oath to support the constitution and laws of this state, and faithfully to discharge the duties of deputy clerk of the court for which the deputy acts;
    5. Receive the amount of any judgment or decree rendered in the court of which they are clerks, either before or after the issue of execution on the judgment or decree; and
    6. Exercise such other powers as are, or may be, conferred upon them by law.
  2. In counties where the clerks and the judges wish to establish a cooperative child support collection system that will serve all courts in the counties in which child support is ordered, the clerks of those counties may enter into an agreement, approved by the respective judges, that child support shall be collected and distributed by one (1) clerk for all the clerks of the counties. The agreement shall be in writing and shall set forth all the terms and conditions for the cooperative child support system. The clerk operating the cooperative child support system for the counties shall be financially accountable and treat all payments as if the order of child support had originated in the court served by that clerk.

Code 1858, § 4050 (deriv. Acts 1801, ch. 6, § 32; 1845-1846, ch. 164, § 1; 1849-1850, ch. 103, § 2); Shan., § 5865; Code 1932, § 10067; T.C.A. (orig. ed.), § 18-108; Acts 1989, ch. 346, § 1.

Cross-References. Certifying attendance of jurors, §§ 22-4-104, 22-4-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.31.

Tennessee Jurisprudence, 1 Tenn. Juris., Affidavits, § 2; 6 Tenn. Juris., Clerks of Court, § 11; 12 Tenn. Juris., Executions, § 3; 16 Tenn. Juris., Judgments and Decrees, § 66; 20 Tenn. Juris., Perjury, § 3.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Attorney General Opinions. Police sergeant appointed deputy court clerk to attest to citations, OAG 98-0138 (8/7/98).

Authority to issue income assignment orders against child support obligors, OAG 99-008 (1/25/99).

Compensation for clerk and master serving as substitute judge not authorized, OAG 99-087 (4/8/99).

Cited: Hoyle v. Wilson, 746 S.W.2d 665, 1988 Tenn. LEXIS 6 (Tenn. 1988); Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 1989 Tenn. LEXIS 542 (Tenn. 1989); Vooys v. Turner, 49 S.W.3d 318, 2001 Tenn. App. LEXIS 89 (Tenn. Ct. App. 2001).

NOTES TO DECISIONS

1. Oaths.

Where the clerk has power to administer oaths, his deputy may also administer them. Campbell v. Boulton, 62 Tenn. 354, 1874 Tenn. LEXIS 58 (1874).

The clerk of the chancery court may, despite the restrictions of this section, administer an oath to one verifying a bill for mandamus. State ex rel. McMurray v. Arnwine, 138 Tenn. 227, 197 S.W. 564, 1917 Tenn. LEXIS 24 (1917).

2. Deputies.

Payment to de facto clerk or deputy is valid, and operates as a satisfaction of the judgment on which it was paid. Farmers & Merchants' Bank v. Chester, 25 Tenn. 458, 1846 Tenn. LEXIS 23 (1846); Kelley v. Story, 53 Tenn. 202, 1871 Tenn. LEXIS 345 (Tenn. Oct. 4, 1871).

The clerk is liable for any neglect of official duty by his deputy. Alston v. Sharp, 70 Tenn. 515, 1879 Tenn. LEXIS 191 (1879).

Commission of a justice to take deposition may be signed by a deputy. Herrin v. Franklin, 1 Tenn. Ch. App. 95 (1902).

Clerks of county court (now county clerks) are authorized to appoint deputies, who are vested with all the powers and authority of the principal clerks, and whose acts are the acts of the principal clerks. Wilkerson v. Dennison, 113 Tenn. 237, 80 S.W. 765, 1904 Tenn. LEXIS 20, 106 Am. St. Rep. 821 (1904).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 21-27.

14 C.J.S. Clerks of Courts §§ 33-37.

Clerks of Courts 64-70.

18-1-109. Acting as masters in chancery.

The clerks of the several courts, in all equity causes in their courts, are vested with the powers of clerks and masters of the chancery court.

Code 1858, § 4051 (deriv. Acts 1855-1856, ch. 101); Shan., § 5866; Code 1932, § 10068; T.C.A. (orig. ed.), § 18-109.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 11.

NOTES TO DECISIONS

1. Reference to Take Testimony.

Where perishable property was attached, and the receiver appointed to take care of the property filed a motion for costs and compensation, it was error to refer the matter to the clerk to take testimony as to such expense and compensation, the clerk having no power. Sklar v. Bernstein, 7 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1928).

Collateral References. 14 C.J.S. Clerks of Courts §§ 1, 34.

18-1-110. Practice of law — Security on bonds.

No clerk of any court can practice law in any of the courts of this state, except as provided in § 23-3-102; neither can the clerk become security for the prosecution of suits in the clerk's court, nor upon any bonds or other obligations required to be executed by the parties in the progress of the suits.

Code 1858, § 4039 (deriv. Acts 1817, ch. 51, § 2; 1826, ch. 14, § 1); Shan., § 5851; Code 1932, § 10051; modified; T.C.A. (orig. ed.), § 18-115.

Attorney General Opinions. Ability of county commissioner to serve as clerk and master for the chancery court in the same county; ability to also engage in private practice of law.  OAG 14-23, 2014 Tenn. AG LEXIS 24 (2/26/14).

Collateral References. 14 C.J.S. Clerks of Courts § 90.

18-1-111. Providing copy of judgment when payments to be made to court clerk — Receipt.

  1. When a judgment is required by order of a general sessions, circuit or chancery court, or by agreement of the parties, to be paid to the court through the applicable court clerk, the clerk, upon request of the debtor, shall provide the debtor with a copy of the judgment entered by the court or the agreement between the parties.
  2. Upon the request of the debtor, the clerk shall provide the debtor with a receipt for any amount paid by the debtor to the clerk in discharge of the judgment or the agreement between the parties.

Acts 2010, ch. 644, § 1.

Compiler's Notes. Former §§ 18-1-111 and 18-1-112 (Code 1858, §§ 4056-4058; Code 1932, §§ 10072-10074; T.C.A. (orig. ed.), §§ 18-116, 18-117), concerning order for examination of records and examination and report of district attorney general, were repealed by Acts 1998, ch. 1080, § 8, effective May 19, 1998.

Effective Dates. Acts 2010, ch. 644, § 2. March 17, 2010.

18-1-112. [Repealed.]

Compiler's Notes. Former §§ 18-1-111 and 18-1-112 (Code 1858, §§ 4056-4058; Code 1932, §§ 10072-10074; T.C.A. (orig. ed.), §§ 18-116, 18-117), concerning order for examination of records and examination and report of district attorney general, were repealed by Acts 1998, ch. 1080, § 8.

18-1-113. Delivery of records to successor.

Upon the suspension or removal from office of any clerk, the clerk shall, on demand of the clerk's successor or order of the court, deliver over to the successor the books, papers and other articles belonging to the office, such delivery to be enforced as provided in title 8, chapter 49.

Code 1858, § 4060 (deriv. Acts 1801, ch. 17, § 4); Shan., § 5875; Code 1932, § 10075; T.C.A. (orig. ed.), § 18-118.

Collateral References. 14 C.J.S. Clerks of Courts § 39.

18-1-114. [Repealed.]

Compiler's Notes. Former § 18-1-114 (Acts 1887, ch. 246; Shan., § 421; Code 1932, § 672; T.C.A. (orig. ed.), § 18-127), concerning supreme court reports, was repealed by Acts 1995, ch. 59, § 1.

18-1-115. Judgment affecting city or county taxes furnished tax collecting officials.

It is the duty of the clerk of any court that renders a judgment or decree affecting city or county taxes to furnish a copy of the judgment or decree to the county trustee or to the city treasurer, comptroller or other municipal officers collecting taxes, as the case may be, of the county or city whose taxes are involved.

Acts 1959, ch. 131, § 1; T.C.A., § 18-128.

Part 2
Disposition of Documents and Evidence

18-1-201. Disposition of documents according to order of court.

The clerks of the courts of record in this state are authorized and empowered to make such disposition of records, dockets, books, ledgers and other documents as the judges of their respective courts may severally direct, subject to the provisions set out in §§ 18-1-202 — 18-1-205.

Acts 1953, ch. 207, § 1 (Williams, § 10074.1); T.C.A. (orig. ed.), § 18-110.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 11.

Cited: Ray v. State, 984 S.W.2d 236, 1997 Tenn. Crim. App. LEXIS 1350 (Tenn. Crim. App. 1997).

Collateral References. 14 C.J.S. Clerks of Courts § 39.

Clerks of Courts 69.

18-1-202. Documents disposable.

    1. In all cases that have been finally disposed of, for a period of more than ten (10) years, the clerks of the courts of record are empowered and authorized under the direction and order of the judges of their respective courts to dispose of the records, dockets, books, ledgers and other documents in all such cases, except the clerk shall retain and safely keep the pleadings, original process and original opinion, if any, all original rules, appearance and execution dockets, minute books, plat or plan books; provided, that all other records, dockets, books, ledgers and documents maintained by the clerks may be disposed of by the clerks after they have ceased to be current after a period of ten (10) years; provided, however, that the disposition is ordered by the respective judges of the courts.
    2. Notwithstanding subdivision (a)(1), the clerks of the juvenile courts are empowered and authorized under the direction and order of the judges of their respective courts to dispose of original pleadings, process, opinions, records, dockets, books, ledgers, and all other documents in delinquent and unruly juvenile court cases after a period of ten (10) years following the juvenile reaching eighteen (18) years of age. Prior to ordering the clerk to dispose of original documents, the court must notify the district attorney general of the proposed order and provide the district attorney general reasonable time to file a notice of opposition to the proposed order.
  2. In civil cases, a judge may order the clerk to destroy discovery materials, briefs, cost bonds, subpoenas and other temporary records three (3) years after the final disposition of the case or three (3) years after records sealed by order of the court have been unsealed. When the order is entered, the court clerk shall notify the parties of the three-year disposition schedule for temporary records, and that the parties may remove temporary records filed by the party during the three-year period. For the purpose of this subsection (b), “final disposition of a case” means the time when judgment has been entered and the appeal times have lapsed for all parties. This subsection (b) shall not apply if any party is a minor.

Acts 1953, ch. 207, § 2 (Williams, § 10074.2); T.C.A. (orig. ed.), § 18-111; Acts 1998, ch. 696, § 1; 2019, ch. 242, § 1.

Amendments. The 2019 amendment added (a)(2).

Effective Dates. Acts 2019, ch. 242, § 2. May 2, 2019.

18-1-203. Minute order for disposition of documents.

Any order issued by any of the judges of courts of record, as authorized in § 18-1-202, shall be entered on the minutes of the court, setting forth generally what papers, books, documents and records may be disposed of. A detailed inventory in the minute entry shall not be required.

Acts 1953, ch. 207, § 3 (Williams, § 10074.3); T.C.A. (orig. ed.), § 18-112.

18-1-204. Preservation of historical records.

Before the clerk destroys or otherwise disposes of, pursuant to § 18-1-202, any records, dockets, books, papers, ledgers and documents, when so authorized by the court, the clerk shall give ninety (90) days' notice to the state librarian and archivist, whereupon the state librarian and archivist, or the state librarian and archivist's representative, shall examine and remove and take into the state librarian and archivist's possession for preservation any document, book, ledger or record that the state librarian and archivist believes to be of value for historical or other scholarly purposes.

Acts 1953, ch. 207, § 4 (Williams, § 10074.4); T.C.A. (orig. ed.), § 18-113.

Collateral References. Clerks of Courts 69.

18-1-205. Periodical disposal of documents.

The courts shall order the disposition of the records, papers, dockets, books, ledgers or other documents enumerated in §§ 18-1-202 — 18-1-204 annually or at such other times as may be thought to be advisable.

Acts 1953, ch. 207, § 5 (Williams, § 10074.5); T.C.A. (orig. ed.), § 18-114.

18-1-206. Disposal of physical evidence.

  1. Physical evidence other than documents and firearms used in judicial proceedings and in the custody of a court in cases where all appeals or potential appeals of a judgment have ended or when the case has been settled, dismissed or otherwise brought to a conclusion, may be disposed of as follows:
    1. The clerk of the court having custody of the physical evidence to be disposed of shall notify the attorneys of record in the case for which the evidence was used that certain enumerated items are no longer needed by the court and that they have thirty (30) days from the date of notification to claim any of the items belonging to them or their clients. If after thirty (30) days the attorneys have not claimed and removed the items of evidence, the clerk shall dispose of the evidence in the manner prescribed by subdivisions (a)(2)-(7);
    2. The clerk of the court having custody of the physical evidence to be disposed of shall annually inventory the physical evidence and prepare a list of the evidence proposed to be destroyed with references to the case involved and the term of court in which the evidence was used;
    3. The clerk shall publish in a newspaper of general circulation in the county for three (3) consecutive weeks the proposed list of items of physical evidence selected for disposition;
    4. Parties interested in the disposition of physical evidence may submit a petition to the court stating their objections to the proposed disposition within thirty (30) days of the initial newspaper publication;
    5. After the time for filing petitions objecting to the disposition has passed, the clerk shall submit the list with any filed petition to the court. The court shall approve or reject each item on the list and shall order that each particular item be disposed of in one (1) of the following ways:
      1. Returned to the owner or the owner's attorney of record if the attorney agrees;
      2. Preserved by a specified organization for historical purposes;
      3. Sold; or
      4. Destroyed;
    6. The clerk shall deliver the order and the items approved for disposition to the custody of the sheriff or the chief of police in counties having a metropolitan form of government for disposition in accordance with the order of the court; and
    7. The sheriff shall deliver the physical evidence to the owner or owners or to the organization or organizations when so ordered, personally or by return receipt mail. When ordered to sell physical evidence, the sheriff shall advertise in a newspaper of general circulation the sales, for not less than three (3) editions and not less than thirty (30) days prior to the sales. The sheriff shall conduct a public sale and maintain a record of each sale and the amount received. The proceeds of the sale or sales shall be deposited forthwith in the county general fund. When ordered to destroy physical evidence, the sheriff shall completely destroy each item by cutting, crushing, burning or melting and shall file an affidavit concerning the destruction with the clerk of the court ordering the destruction, showing a description of each item, the method of destruction, the date and place of destruction and the names and addresses of all witnesses. In counties having a metropolitan form of government, all references to the sheriff in this subdivision (a)(7) means the chief of police.
  2. This section shall not act to amend or repeal any of the provisions of any private act or acts that provide for the disposal of physical evidence or exhibits used in any judicial proceeding in any county having a population of over six hundred thousand (600,000), according to the 1980 federal census or any subsequent federal census.

Acts 1985, ch. 187, § 1; 1989, ch. 113, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Disposal of property by sheriff, title 8, ch. 8, part 5.

Uniform disposition of unclaimed property, title 66, ch. 29, part 1.

Cited: Ray v. State, 984 S.W.2d 236, 1997 Tenn. Crim. App. LEXIS 1350 (Tenn. Crim. App. 1997).

Part 3
Misconduct

18-1-301. Grounds for removal.

The court may remove its clerk:

  1. Upon conviction of a misdemeanor in office or of a felony;
  2. For nonresidence in the county in which the court is held;
  3. For failing to give security as required by law;
  4. For failing to pay over public moneys or moneys collected officially;
  5. For incapacity, neglect of duty or misbehavior in office; and
  6. For any other cause to which the penalty of removal from office is attached by law.

Code 1858, § 4061 (deriv. Acts 1801, ch. 17, § 1); Shan., § 5876; Code 1932, § 10076; T.C.A. (orig. ed.), § 18-119.

Cross-References. Removal of supreme court clerk, § 18-3-110.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, §§ 7, 13; 8 Tenn. Juris., Criminal Procedure, § 4.

Cited: Marshall v. Sevier County, 639 S.W.2d 440, 1982 Tenn. App. LEXIS 396 (Tenn. Ct. App. 1982).

NOTES TO DECISIONS

1. Constitutionality.

Tenn. Const., art. V, § 5, does not apply to summary proceeding for removal of clerk from office. Trent v. State, 195 Tenn. 350, 259 S.W.2d 657, 1953 Tenn. LEXIS 348 (1953).

2. Conviction of Felony or Misdemeanor.

Clerk can be removed for any felony whether conducted with operation of office or not, and for misdemeanors in office. Trent v. State, 195 Tenn. 350, 259 S.W.2d 657, 1953 Tenn. LEXIS 348 (1953).

3. —Suspended Sentence.

Contention by clerk that evidence did not justify his removal for conviction of a felony on the ground that sentence had been suspended was without merit. Trent v. State, 195 Tenn. 350, 259 S.W.2d 657, 1953 Tenn. LEXIS 348 (1953).

4. Procedure.

5. —Summary.

Proceeding to remove clerk from office for conviction of a felony under this section was a summary proceeding and defendant was not entitled to appeal from order of removal but was entitled to file record for writ of error. Trent v. State, 195 Tenn. 350, 259 S.W.2d 657, 1953 Tenn. LEXIS 348 (1953).

6. —Notice.

The clerk is entitled to notice of proceedings against him before his removal. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824); In re Wickersham, 46 Tenn. 333, 1869 Tenn. LEXIS 63 (1869).

7. Two Judges — Joint Hearing.

Clerk was not prejudiced in removal proceeding where hearing was conducted jointly by two judges entitled to proceed against clerk. Trent v. State, 195 Tenn. 350, 259 S.W.2d 657, 1953 Tenn. LEXIS 348 (1953).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 7-10.

14 C.J.S. Clerks of Courts § 8.

Clerks of Courts 8.

18-1-302. Suspension on indictment.

Immediately upon indictment found against any clerk for a felony or misdemeanor in office, the court of which the clerk is clerk may suspend the clerk from office and appoint a clerk pro tempore, until a final decision can be had, who shall be entitled to the fees and perquisites of office during the suspension.

Code 1858, § 4062 (deriv. Acts 1801, ch. 17, § 2); Shan., § 5877; Code 1932, § 10077; T.C.A. (orig. ed.), § 18-120.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 7.

Collateral References. 14 C.J.S. Clerks of Courts §§ 8, 80.

Clerks of Courts 8.

18-1-303. Proof of improper conduct of office.

The failure to pay over money collected officially, incapacity, neglect of duty and misbehavior in office may be shown by the record of a suit, by motion, or otherwise founded upon one (1) of the causes, and decided adversely to the clerk; or charges may be exhibited to the court, in writing, by any person, and satisfactorily established by proof, the clerk having a right to be heard in defense, and to an appeal, as in other cases.

Code 1858, § 4063; Shan., § 5878; Code 1932, § 10078; T.C.A. (orig. ed.), § 18-121.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 7.

Collateral References. 14 C.J.S. Clerks of Courts § 81.

18-1-304. [Repealed.]

Compiler's Notes. Former § 18-1-304 (Code 1858, § 4064; Code 1932, § 10079; T.C.A. (orig. ed.), § 18-122), concerning prosecution of charges against clerk, was repealed by Acts 1998, ch. 1080, § 8.

18-1-305. Misdemeanor in office — Penalty.

Any clerk who willfully or corruptly does any act contrary to the duties of such clerk's office, as prescribed by law, or, in like manner, omits or refuses to perform any service or duty required of the clerk, unless some other penalty is expressly provided, commits a Class C misdemeanor and may be removed from office.

Code 1858, § 4065 (deriv. Acts 1801, ch. 17, § 1); Shan., § 5880; Code 1932, § 10080; T.C.A. (orig. ed.), § 18-123; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 7.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

Collateral References. 14 C.J.S. Clerks of Courts § 78.

18-1-306. False entries to affect causes.

Any clerk who knowingly and willfully makes a false entry, knowingly and willfully fails to make an entry required by law to be made, or knowingly and willfully makes out an imperfect or incorrect transcript of the proceedings had in the clerk's court, with the intent to affect the result of any cause, commits a Class A misdemeanor.

Code 1858, § 4066; Shan., § 5881; Code 1932, § 10081; T.C.A. (orig. ed.), § 18-124; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 7.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

Attorney General Opinions. Publication of criminal court records on the Internet, OAG 00-058 (3/31/00).

Collateral References. 14 C.J.S. Clerks of Courts §§ 8, 79.

Part 4
Vacancy in Office

18-1-401. Deputy filling vacancy.

In case of the death of any clerk of a court, the clerk's deputy holds the office until the vacancy is filled by appointment or election, as the case may be.

Code 1858, § 334 (deriv. Acts 1794, ch. 1, § 72); Shan., § 410; Code 1932, § 660; T.C.A. (orig. ed.), § 18-125.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 6.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Attorney General Opinions. Authority over the juvenile court system and its employees, OAG 07-004 (1/11/07).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 39, 40, 42.

14 C.J.S. Clerks of Courts §§ 7, 90.

Clerks of Courts 7.

18-1-402. Temporary appointment.

The several courts may fill any vacancy temporarily until an election can be had according to law.

Code 1858, § 325; Shan., § 401; mod. Code, 1932, § 651; T.C.A. (orig. ed.), § 18-126.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 6.

Cited: Graham v. England, 154 Tenn. 435, 288 S.W. 728, 1926 Tenn. LEXIS 140 (1926).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Vacancy in Office of County Court Clerk.

A vacancy in the office of the county court clerk (now county clerk) had to be filled by the quarterly county court and not by the county judge, so that a suit by the state upon the relation of one elected clerk of the county court (now county clerk) by the quarterly court to recover the office from one appointed by the county judge could be maintained. State ex rel. Johnson v. Campbell, 76 Tenn. 74, 1881 Tenn. LEXIS 11 (1881); Maloney v. Collier, 112 Tenn. 78, 83 S.W. 667, 1903 Tenn. LEXIS 91 (1904).

Collateral References. 14 C.J.S. Clerks of Courts § 7.

Clerks of Courts 7.

Part 5
State Court Clerks' Conference

18-1-501. Creation and membership of conference.

There is created the Tennessee state court clerks' conference, which shall be the official organization of the circuit court clerks, clerks and masters, criminal court clerks, juvenile court clerks, probate clerks and elected general sessions court clerks in this state. The membership of the conference shall consist of all circuit court clerks, clerks and masters, elected probate clerks, criminal court clerks, juvenile court clerks and elected general sessions court clerks in this state. Deputies of the clerks shall be associate members of the conference.

Acts 1982, ch. 852, § 1.

18-1-502. Rules, regulations, and bylaws.

The state court clerks' conference is authorized to adopt and, from time to time, amend such rules, regulations, or bylaws as it considers necessary for the conduct of its affairs. The rules, regulations or bylaws shall provide for the election of a president, vice president, secretary and such other officers as the conference considers advisable, for the method of selection of the officers, and for such other matters consistent with the general laws of the state as the conference may choose.

Acts 1982, ch. 852, § 2; 1985, ch. 239, § 2.

18-1-503. Calling meetings — Notice — Seminars.

The president of the conference may call meetings at will, upon at least ten (10) days' written notice to members, and shall call at least one (1) meeting annually. The annual meeting shall provide educational seminars or training for the membership in addition to the business sessions. The conference may from time to time provide additional education seminars for its membership in cooperation with the administrative director of the courts and the University of Tennessee's center for government training.

Acts 1982, ch. 852, § 3; 1985, ch. 239, § 3; 1993, ch. 66, § 41.

18-1-504. Attendance.

  1. The maximum number of individuals attending from a clerk's office in a county will be determined by the classification of counties as enumerated in § 8-24-101. The ratio of individuals from each clerk's office allowed to attend per classification is as follows:
    1. Counties of the first class — 12;
    2. Counties of the second class — 10;
    3. Counties of the third class — 8;
    4. Counties of the fourth class — 6;
    5. Counties of the fifth class — 4;
    6. Counties of the sixth class — 2;
    7. Counties of the seventh class — 2; and
    8. Counties of the eighth class — 2.
  2. If a clerk's office in a county does not have the maximum number of attendees, other clerks' offices in the county may send additional people to meetings of the state court clerks' conference. The total number of attendees from all clerks' offices within each county shall not exceed the total established by adding the number of attendees allowed for each clerk's office within the county, as enumerated in § 8-24-101.

Acts 1982, ch. 852, § 4; 1990, ch. 764, § 1.

18-1-505. [Repealed.]

Compiler's Notes. Former § 18-1-505 (Acts 1982, ch. 852, § 5), concerning travel expenses, was repealed by Acts 1983, ch. 449, § 3. For new law, see §§ 67-4-602 — 67-4-606.

18-1-506. Administration of seminar.

The seminar described in § 18-1-503 shall be administered by the administrative director of the courts and the administrative director's staff in cooperation with the conference. The state, through the administrative office of the courts, shall pay for all expenses incurred in administering the seminar.

Acts 1982, ch. 852, § 6; 1993, ch. 66, § 42.

Cross-References. Duties of administrative director of the courts, § 16-3-803.

18-1-507. Meetings.

  1. The conference shall meet annually and at other times as provided in this part for consideration of any and all matters pertaining to the discharge of the official duties and obligations of its members, and for the purpose of education and training, to the end that there be a more prompt and efficient administration of the duties and responsibilities of the state clerks and their offices.
  2. It is the official duty of each member of the conference to attend its meetings unless otherwise officially engaged, or for good and sufficient reasons.

Acts 1985, ch. 239, §§ 1, 4.

Cross-References. Calling of meetings, § 18-1-503.

18-1-508. Duties — Committee on drafting and monitoring legislation.

It is the duty of the conference to give consideration to the enactment of such laws and rules or procedure as in its judgment may be necessary to the more effective operation of the offices of the state court clerks. To this end a committee of its members shall be appointed to draft suitable legislation and submit its recommendations to the general assembly and to monitor legislation otherwise submitted that impacts upon the operation of the state court clerks' offices.

Acts 1985, ch. 239, § 1.

Chapter 2
Accounting and Bonds

Part 1
Accounting

18-2-101. Cash book — Penalty for violations.

  1. The clerks of the courts, and clerks and masters, shall keep a cash book as one (1) of the public records of their respective offices, in which they shall enter, under each case, all sums of money received or disbursed by them, showing the date of receipt or disbursement, on what account received or disbursed and to or from whom received or disbursed.
  2. The cash book shall be indexed direct and reverse.
  3. The cash book shall at all times be open to the inspection of the public.
  4. It is a Class A misdemeanor for any clerk or clerk and master to fail to keep the cash book or to allow its inspection as provided in this section.

Acts 1897, ch. 26; Shan., § 5852a1; Code 1932, § 10053; T.C.A. (orig. ed.), § 18-201; Acts 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Application to references to clerks and masters, Tenn. R. Civ. P. 53.05.

Clerk, clerical and administrative staff of board of commissioners, §§ 18-6-101 — 18-6-103.

Disposition of unclaimed moneys, title 5, ch. 8, part 4.

Money paid into court, Tenn. R. Civ. P. 67.03.

Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 642.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 13.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Comparative Legislation. Accounting and bonds:

Ala.  Code §§ 12-2-91, 12-2-92, 12-17-91.

Ark.  Code §§ 14-14-1303, 16-20-106, 16-20-201.

Ga. O.C.G.A. § 15-6-59.

Ky. Rev. Stat. Ann. §§ 21A.030, 30A.030.

Miss.  Code Ann. §§ 9-3-13, 9-5-131, 9-7-121.

Mo. Rev. Stat. § 483.025 et seq.

N.C. Gen. Stat. §§ 7A-11, 7A-20, 7A-107.

Va. Code §§ 17-38.

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 24-26.

14 C.J.S. Clerks of Courts § 42.

Clerks of Courts 70.

18-2-102. Payment of money to parties — Penalty for violations.

  1. It is the duty of each of the clerks of the several courts, upon application of the party entitled, the party's agent or attorney, made at the office of the clerk, to pay and deliver to the applicant, without delay, any money or property in the clerk's hands, received by virtue of any decree, judgment or order of the court, or any judge of the court, or by virtue of the clerk's office.
  2. A failure to comply with the requirements of this section is a Class C misdemeanor and, moreover, subjects the clerk to motion against the clerk and the clerk's sureties.

Code 1858, §§ 4043, 4044 (deriv. Acts 1807, ch. 66, §§ 8, 9); Shan., §§ 5860, 5861; Code 1932, §§ 10062, 10063; T.C.A. (orig. ed.), § 18-202; Acts 1989, ch. 591, § 113.

Cross-References. Money paid into court, Tenn. R. Civ. P. 67.03.

Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 640.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, §§ 12-14; 8 Tenn. Juris., Criminal Procedure, § 4.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

Attorney General Opinions. A clerk of a trial court is required to collect all costs incident to litigation, including costs incurred by a successful plaintiff at the initiation of a lawsuit, and to pay such costs to that party as part of the judgment of the court, OAG 02-072 (6/3/02).

Litigation taxes paid by a plaintiff at the filing of a lawsuit may not be included as costs and may not be recovered at the conclusion of a lawsuit against an unsuccessful defendant absent a court order to the contrary, OAG 02-072 (6/3/02).

18-2-103. Report of money or assets held.

  1. It is the duty of the clerks or clerks and masters of the respective courts to prepare a written financial report describing and identifying the amounts of money or other assets in their respective offices at the end of each fiscal year.
  2. The report shall include a listing of all cases for which funds are being held, showing the style of each case and the amount held for each case.
  3. The report shall be filed with the respective court within thirty (30) days of the close of the fiscal year.
  4. The report shall be available for inspection by the comptroller of the treasury, or the comptroller of the treasury's designated representative, parties to the litigation and their counsel and other interested parties.

Acts 1869-1870, ch. 37, § 9; Shan., § 420; mod. Code 1932, § 669; modified; T.C.A. (orig. ed.), § 18-203; Acts 1984, ch. 843, § 1.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 636.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Failure to Report.

A county clerk is required to report regardless of whether he has received any revenue or not; and if he fails to do so he is liable to indictment. State v. Jones, 70 Tenn. 716, 1879 Tenn. LEXIS 229 (1879).

An indictment of a county clerk for failure to make report of revenue need not aver that the failure or omission to report was corruptly done. State v. Jones, 70 Tenn. 716, 1879 Tenn. LEXIS 229 (1879).

2. Check Substituted for Money — Liability.

This section does not authorize the clerk to exhibit checks as a substitute for the money required to be reported, but the fact that checks are exhibited in the place of money in violation of the law will not enable the drawers of the checks to escape liability to the creditors of the office, for the protection of the sureties of the official, to the extent of the amount of the checks, with interest. Longmire v. Fain, 89 Tenn. 393, 18 S.W. 70, 1890 Tenn. LEXIS 61 (1890).

Collateral References. 14 C.J.S. Clerks of Courts § 42.

Clerks of Courts 70.

18-2-104. False report of moneys held.

Any clerk or clerk and master who willfully and corruptly makes a false report to the court of the matters required by § 18-2-103 commits a Class A misdemeanor, and the clerk shall be removed from office under § 18-2-213.

Acts 1869-1870, ch. 37, § 10; Shan., § 422; Code 1932, § 670; T.C.A. (orig. ed.), § 18-204; Acts 1989, ch 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 617.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 13.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

Collateral References. 14 C.J.S. Clerks of Courts §§ 8, 50.

18-2-105. Unlawful use or disposal of money or property.

Any clerk or clerk and master of any court who, without authority of law, uses, loans or converts to the clerk's or clerk and master's own use, or otherwise disposes of, any money or property that may have come into the clerk's or clerk and master's hands in the clerk's or clerk and master's official capacity, commits a Class C felony.

Acts 1869-1870, ch. 37, § 11; Shan., § 423; mod. Code 1932, § 671; T.C.A. (orig. ed.), § 18-205; Acts 1989, ch. 591, § 26.

Cross-References. Penalty for Class C felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 13.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

NOTES TO DECISIONS

1. Construction.

Read broadly, T.C.A. § 18-2-105 provides that the inclusive and unspecific designation of “any money or property which may have come into the clerk's or clerk and master's hands in the clerk's or clerk and master's official capacity” includes money taken from a governmental budget. Wooley v. Madison County, 209 F. Supp. 2d 836, 2002 U.S. Dist. LEXIS 12297 (W.D. Tenn. 2002).

Collateral References. 26 Am. Jur. 2d Embezzlement §§ 34, 35.

29A C.J.S. Embezzlement § 17.

Embezzlement, larceny, false pretenses or allied criminal fraud by a partner. 82 A.L.R.3d 822.

18-2-106. Reports of property sold.

  1. It is the duty of the clerk, whenever property has been sold by the clerk under order of the clerk's court, or any judge of the court, at each term to make and submit to the court a report showing the property sold, the amount of the sale, the principal and interest collected, the aggregate fund on hand, the disbursements made, to whom and when, specifying separately the fees allowed to the clerk and other officers of court.
  2. Any person interested in the report may except to the report, as in other cases.

Code 1858, §§ 4045, 4046 (deriv. Acts 1851-1852, ch. 178, §§ 1, 2); Shan., § 5862; Code 1932, § 10064; T.C.A. (orig. ed.), § 18-206.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 877.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Exceptions — Waiver of Objections Thereto.

Exceptions filed out of time must be objected to by motion to take them from the files, or the objection is waived. Bryant v. McCollum, 51 Tenn. 511, 1871 Tenn. LEXIS 197 (1871).

2. Setting Aside Sale — Procedure.

The proper mode of setting aside a sale, for matter not in the record, is by petition, and not by exceptions to the report. Bryant v. McCollum, 51 Tenn. 511, 1871 Tenn. LEXIS 197 (1871).

3. Duty of Court Making Sales.

In making sales of property it is the duty of the court to see: (1) That the proper parties are before the court to give a good title to the purchaser; (2) That the pleadings and proofs justify the sale; (3) That there is a proper decree of sale; (4) That the sale is made by the master in strict compliance with the decree; (5) That the best price possible is obtained for the property sold; and (6) That the report of sale by the master and confirmation thereof are in regular form. Donlon v. Donlon, 57 Tenn. App. 319, 418 S.W.2d 448, 1967 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1967).

18-2-107. Decree on report of property sold — Appeal.

  1. The report and the action of the court on the report shall be embodied in a decree, to be entered on the minutes of the court, and the clerk shall be entitled to no other fees or allowances than those specified and fixed by the decree of the court.
  2. The action of the court is subject to the right of appeal by the persons interested, as in other cases.

Code 1858, §§ 4047, 4048 (deriv. Acts 1851-1852, ch. 178, § 2); Shan., § 5863; Code 1932, § 10065; T.C.A. (orig. ed.), § 18-207.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 877.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Decree.

2. —Setting Aside.

Court does not lose jurisdiction to set aside decree as to the sale of property for 30 days after its entry and decree can be set aside during that period upon a proper showing. Donlon v. Donlon, 57 Tenn. App. 319, 418 S.W.2d 448, 1967 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1967).

3. Duty of Court Making Sales.

In making sales of property it is the duty of the court to see: (1) That the proper parties are before the court to give a good title to the purchaser; (2) That the pleadings and proofs justify the sale; (3) That there is a proper decree of sale; (4) That the sale is made by the master in strict compliance with the decree; (5) That the best price possible is obtained for the property sold; and (6) That the report of sale by the master and confirmation thereof are in regular form. Donlon v. Donlon, 57 Tenn. App. 319, 418 S.W.2d 448, 1967 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1967).

Part 2
Bonds

18-2-201. Official bond.

  1. Every clerk of a court except the clerk of the supreme court and chief deputy clerks of the supreme court, before entering upon the duties of the clerk's office, shall enter into an official bond, which shall be prepared in accordance with title 8, chapter 19, to the satisfaction of the clerk's court, in the sum of fifty thousand dollars ($50,000) in counties with a population of less than fifteen thousand (15,000) and one hundred thousand dollars ($100,000) in counties with a population of fifteen thousand (15,000) or more, according to the 2010 federal census or any subsequent federal census, or in a greater sum as the court may determine, payable to the state, and conditioned for the safekeeping of the records and for the faithful discharge of the duties of the clerk's office.
  2. The clerk of the supreme court and chief deputy clerks of the supreme court shall be included within the blanket surety bond required by § 4-4-108.
  3. Unless otherwise clearly indicated by the context in which it is used, “clerk of a court” or “clerk,” as used in this part, includes “county clerk.”

Code 1858, § 326 (deriv. Acts 1794, ch. 1, §§ 2, 50); Shan., § 402; Code 1932, § 652; Acts 1977, ch. 270, § 16; 1980, ch. 887, § 5; T.C.A. (orig. ed.), § 18-208; Acts 1982, ch. 662, § 1; 1993, ch. 70, §§ 6, 7; 1998, ch. 677, § 14; 2013, ch. 315, § 17.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2013, ch. 315, § 31 provided that the act, which amended subsection (a), shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Amendments. The 2013 amendment substituted “fifty thousand dollars ($50,000) in counties with a population of less than fifteen thousand (15,000) and one hundred thousand dollars ($100,000) in counties with a population of fifteen thousand (15,000) or more, according to the 2010 federal census” for “twenty-five thousand dollars ($25,000) in counties with population of less than fifteen thousand (15,000) and fifty thousand dollars ($50,000) in counties with population of fifteen thousand (15,000) or more, according to the 1970 federal census” in (a).

Effective Dates. Acts 2013, ch. 315, § 31. April 29, 2013.

Cross-References. Condition that fees, etc., will be accounted for, § 8-22-102.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 632.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, §§ 5, 14; 15 Tenn. Juris., Insurance, § 127; 16 Tenn. Juris., Judicial Sales, § 9.

Cited: Longmire v. Fain, 89 Tenn. 393, 18 S.W. 70, 1890 Tenn. LEXIS 61 (1890); Johnson v. Brice, 112 Tenn. 59, 83 S.W. 791, 1903 Tenn. LEXIS 90 (1904).

NOTES TO DECISIONS

1. Conditions of Bond.

The evidences belonging to each party, except the depositions, may be entrusted to that party, but the court papers ought never to be out of the custody of the clerk or judge. The clerk is, both civilly and criminally, liable for the preservation of the records, and is responsible upon his bond for their preservation, and he is peculiarly the proper custodian of them. Tindall v. Shelby, 5 Tenn. 98, 1817 Tenn. LEXIS 61 (1817).

A bond to the effect that the officer will truly and faithfully perform all the duties of the office is a guaranty of the personal honesty of such officer and furnishes indemnity against his defalcations. United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 1907 Tenn. LEXIS 53 (1907).

2. —Common Law Bond.

A fidelity bond given voluntarily, for a valid consideration, by a surety company, which was not conditioned according to the statutes, omitting one prescribed condition and embracing other unrequired conditions, is nevertheless a bond good at common law and enforceable to the full extent of the penalty imposed. United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 1907 Tenn. LEXIS 53 (1907).

3. —Implied Assumpsit Not within Bond — Liability.

County could not maintain an action of assumpsit against the personal representative of the deceased clerk of the county court (now county clerk) to recover the amount of money appropriated and paid by the county court under contract with his successor in office for the performance of certain official duties neglected by such deceased clerk in failing and neglecting to record marriage licenses and settlements made with guardians and administrators. This suit was not upon the bond, nor by any one who had been injured, but it was a suit to recover as upon an implied assumpsit for money paid for the work and labor of another without his request, or knowledge, and even after his death. Alexander v. Marshall, 40 Tenn. 475, 1859 Tenn. LEXIS 134 (1859).

4. Bond as Commissioner — Effect on Bond as Clerk.

A bond given by a clerk to secure his duties as such is not displaced by an additional bond as commissioner, as a direct order of court is necessary to display a bond and the taking of additional bonds authorized by statute cannot harm the surety since it operates to make the liability of the surety on the bond of the clerk for his default as commissioner secondary to that extent. State use of Heiskell v. Fidelity & D. Co., 132 Tenn. 303, 178 S.W. 433, 1915 Tenn. LEXIS 23 (1915).

5. Reelected Clerk — Failure to Give Bond.

A reelected clerk who continues to act as clerk, and has custody and control of the records, but without giving bond, or being sworn in as clerk, is at least a clerk de facto, if not de jure. Douglas v. Neil, 54 Tenn. 437, 1872 Tenn. LEXIS 70 (1872); Heard v. Elliott, 116 Tenn. 150, 92 S.W. 764, 1905 Tenn. LEXIS 14 (1905).

6. Sureties.

7. —Signatures and Acknowledgments.

Where sureties upon the several bonds of a clerk and master signed the same at different times and places, and part of the sureties acknowledged the bonds before the chancellor, and others did not, all were liable, those who did not acknowledge as well as those who did. Buford v. Cox, 71 Tenn. 518, 1879 Tenn. LEXIS 109 (1879).

8. —Signing on Condition.

Sureties signing bond on the condition that others named would sign it also, but acknowledging same without communicating the conditions, are liable, although the others do not sign it. Bramley v. Wilds, 77 Tenn. 674, 1882 Tenn. LEXIS 121 (1882).

9. —Securing New Sureties.

Clerk of court who failed to secure new sureties after written notice by old sureties was subject to removal by the court. Evans v. Justices of Claibourne County, 4 Tenn. 26, 1816 Tenn. LEXIS 9 (1816).

10. Relation to Other Statutes.

The remedy of persons not falling within the scope of either § 18-2-202 or former § 18-209 relating to revenue bonds was upon the clerk's official bond prescribed by this section. State v. American Surety Co., 22 Tenn. App. 197, 120 S.W.2d 967, 1938 Tenn. App. LEXIS 16 (Tenn. Ct. App. 1938).

Decisions Under Prior Law

1. Scope of Revenue Bond.

A suit would not lie in the name of the state, for the use of an individual, upon the official revenue bond of the clerk of the county court (now county clerk) for a wrong done to him by the clerk in refusing to accept a tender of what is known as the “old issue” of the bank of Tennessee in payment of the merchant's privilege tax. Such bond was given to the state to enforce the performance of official duties and to indemnify the public against official delinquency. State ex rel. Bailey, Ordway & Co. v. Nichol, 76 Tenn. 657, 1881 Tenn. LEXIS 58 (1881).

2. Conditioned Contrary to Statute.

Where the revenue bond of a circuit court clerk was voluntarily and for a valid consideration executed by him and his surety, but was not conditioned according to statute, omitting one prescribed condition, and embracing other conditions not required by the statute, but not against public policy, such bond was a good common law bond, and would be enforced to the full extent of the penalty imposed for the breach of the conditions prescribed by the statute and those stipulated in the bond. United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 1907 Tenn. LEXIS 53 (1907).

3. Defalcation of Criminal Court Clerk — Jurisdiction of Circuit Court.

A motion by the state against the clerk of the criminal court of Davidson County, and his sureties for failure to pay over jail fees advanced by the state in criminal cases and finally adjudged against the county and collected by the criminal court clerk, and also the state taxes on litigation in criminal cases collected by such clerk from the county, could be made in the circuit court of Davidson County. Donelson v. State, 71 Tenn. 692, 1879 Tenn. LEXIS 132 (1879).

Collateral References. 14 C.J.S. Clerks of Courts § 4.

Liability of clerk of court, county clerk or prothonotary for negligent or wrongful acts of deputies or assistants. 71 A.L.R.2d 1140.

Clerks of Courts 16, 73-75.

18-2-202. Commissioner and receiver bond.

The several courts may also require their clerks to give bond, in accordance with § 18-2-205, in such sum as the court deems sufficient to cover property or funds that may at any time come to the hands of the clerks as special commissioners or receivers, by appointment of the court or any judge of the court.

Code 1858, § 328 (deriv. Acts 1849-1850, ch. 150, § 2); Shan., § 404; Code 1932, § 654; T.C.A. (orig. ed.), § 18-210; Acts 1998, ch. 677, § 15.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 632.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14; 15 Tenn. Juris., Insurance, § 127.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

NOTES TO DECISIONS

1. Implied Powers.

The power of special commissioners to sell property and to take notes therefor implies the power to receive payment. Matthews v. Thompson, 49 Tenn. 588, 1871 Tenn. LEXIS 48 (1871).

2. Statutory and Common Law Bond.

Where a special bond was not only conditioned as required by § 18-2-202 but also had a superadded condition relating to “fees from the sale of property or otherwise” it was properly construed by the chancery court as a statutory bond and also a common law bond limited only by its terms, the contention that the superadded condition and §§ 8-19-111, 8-19-301 would make the bond a statutory official bond was not valid since those sections are general in nature and are not applicable when a specific section such as § 18-2-202 is involved. State v. American Surety Co., 22 Tenn. App. 197, 120 S.W.2d 967, 1938 Tenn. App. LEXIS 16 (Tenn. Ct. App. 1938).

3. Special Commissioner or Receiver.

4. —Designation as Commissioner — Necessity.

A decree of sale directing the clerk of the court to sell property need not designate him otherwise than as clerk. Williams v. Bowman, 40 Tenn. 678, 1859 Tenn. LEXIS 199 (1859); Bowen v. Evans, 69 Tenn. 107, 1878 Tenn. LEXIS 54 (1878).

It is not necessary for the clerk to be appointed “special commissioner,” either by general appointment or by decree in the several causes in which he acts. When the clerk is ordered to perform duties not pertaining to his office proper, it is not necessary that he should be styled “special commissioner,” for without such designation, the sureties on his bond as special commissioner will be liable for his defaults in such capacity, though he was not specially appointed as such commissioner. Buford v. Cox, 71 Tenn. 518, 1879 Tenn. LEXIS 109 (1879); State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884).

5. —Duration of Appointment.

The appointment of a special commissioner is not under the Constitution, but under the authority conferred by statute. The duration of the appointment is not limited by law. This is left to the discretion of the court, according to the exigencies that may arise. If the duration of the appointment is not limited by the court in the order of appointment, the appointment continues until the duties of the trust are discharged. The special commissioner is properly a trustee, and the condition of the bond obliges him to perform all the duties of the trust. Williams v. Bowman, 40 Tenn. 678, 1859 Tenn. LEXIS 199 (1859); Bowen v. Evans, 69 Tenn. 107, 1878 Tenn. LEXIS 54 (1878); Horton v. Cope, 74 Tenn. 155, 1880 Tenn. LEXIS 222 (1880); State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884).

While the statutes in a certain sense annexed the office of special commissioner to that of the clerk, because they entitle the clerk to perform the duties of the office of commissioner and to receive the emoluments thereof, if he will execute a special bond, there is no merger of the two offices, and the duration of the appointment of a special commissioner is not limited by law, and it may continue beyond the term of the office of the clerk, if a successor to the commissioner shall not be appointed by the court when the individual ceases to be clerk. State use of Heiskell v. Fidelity & D. Co., 132 Tenn. 303, 178 S.W. 433, 1915 Tenn. LEXIS 23 (1915).

6. —Death of Commissioner — Effect on Trust.

The legal title to notes taken by, and payable to, the commissioner to sell property under decree of court, upon his death vests in his personal representative, subject to the trust in favor of the beneficiaries, and until another commissioner or trustee is appointed by the court, the authority continues in the commissioner and his personal representative. Horton v. Cope, 74 Tenn. 155, 1880 Tenn. LEXIS 222 (1880); State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884).

7. Sureties.

8. —Reappointment — Liability of Sureties on Old and New Bonds.

Where a clerk and master is reappointed and executes his bond as commissioner and receiver, the sureties on his first bond are only liable for the money received from the sales of land prior to the execution of his second bond, and the sureties upon his second bond are liable for all moneys received afterwards in such capacity. Bowen v. Evans, 69 Tenn. 107, 1878 Tenn. LEXIS 54 (1878).

9. —Reelection of Clerk.

If a clerk of the county court (now county clerk) is reelected and qualified as his own successor, and has money on hand belonging to the office which has not been demanded during his first term of office, the sureties on his first bond will not be liable therefor, but the sureties on his second bond will be liable for the proper accounting therefor. Yoakley v. King, 78 Tenn. 67, 1882 Tenn. LEXIS 143 (1882).

If a clerk having money in his hands, either as clerk or special commissioner and receiver, becomes his own successor, the old sureties will be released and the new sureties will become liable therefor. The presumption in the absence of proof to the contrary is that the money was on hand at the time of the succession, and this presumption can only be removed by positive proof to the contrary, or at least by the production of the best evidence. The mere fact that the clerk's account in bank was overdrawn at the time of the succession is not sufficient, when the proof is clear that there was no defalcation during the first term. State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884); State v. Polk, 82 Tenn. 1, 1884 Tenn. LEXIS 95 (1884); State use of Anderson County v. Hays, 99 Tenn. 542, 42 S.W. 266, 1897 Tenn. LEXIS 66 (1897).

10. —Loss of Money Not Loaned.

The sureties on the official bond of the clerk and master are liable for the loss of money received and retained by him as clerk and master, though he is directed by order of the court to lend it out as receiver, where he never lends it, and never does any act indicating his acceptance of the office of receiver. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836); Buford v. Cox, 71 Tenn. 518, 1879 Tenn. LEXIS 109 (1879); State v. Cole, 81 Tenn. 367, 1884 Tenn. LEXIS 51 (1884).

11. —Secondary Liability of Sureties.

Where a bank check was drawn and furnished to be used, and was in fact used, by the clerk and master in lieu of cash in making his financial reports, whereby he was enabled to cover up his default and continue in office, the drawer of such check in favor of the incumbent of the office of clerk and master, though in his individual and not in his official capacity, becomes liable for the amount of that check to the creditors of that officer, although the check was given without consideration and was afterwards returned to the drawer; and the liability of the drawer of such check in such case is primary, as between himself and the sureties of the several bonds. Longmire v. Fain, 89 Tenn. 393, 18 S.W. 70, 1890 Tenn. LEXIS 61 (1890).

Collateral References. Clerks of Courts 16, 73-75.

18-2-203. Failure to give commissioner and receiver bond.

The failure of the clerk to execute the special bond provided for in § 18-2-202 shall not subject the clerk to any penalty, but the court may confide the particular business to such other person as will give the required security, and, in the absence of the special bond, the clerk and the clerk's sureties will be liable, on the regular official bond, for all property or money with which the clerk may be properly chargeable as special commissioner or receiver.

Code 1858, § 329; Shan., § 405; Code 1932, § 655; T.C.A. (orig. ed.), § 18-211.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14; 15 Tenn. Juris., Insurance, § 127; 21 Tenn. Juris., Reference and Commissioners, § 19.

NOTES TO DECISIONS

1. Failure to Accept Receivership — Effect as to Money Held.

Where a clerk and master has received money in his character of clerk and he is appointed by the court a receiver and ordered to loan the money out, but there is no evidence showing that he loaned the money and no fact or circumstance from which it may be inferred that he accepted the office of receiver, or acted under it, the money will be considered as retained in his hands as clerk and master. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836).

2. Acceptance of Receivership — Effect on Sureties on Official Bond.

A court of chancery cannot impose the office of receiver upon its clerk and master without the consent of the clerk, and where a clerk and master is appointed by the courts as receiver, and as such receives in his hands money or property, the sureties on his official bond, taken for the faithful performance of his duties as clerk, are not responsible. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836).

18-2-204. Special bonds.

The court may also require special bonds to meet particular exigencies, and in a suitable penalty, whenever, in its judgment, the interest of suitors render it necessary, subject to § 18-2-203.

Code 1858, § 330; Shan., § 406; Code 1932, § 656; T.C.A. (orig. ed.), § 18-212.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14.

Law Reviews.

Special Project: Criminal Procedure as Defined by the Tennessee Supreme Court (Julian L. Bibb and Walter Sillers Weems), 30 Vand. L. Rev. (4) 691.

NOTES TO DECISIONS

1. Limited Liability of Sureties — Effect of Bond on Other Bonds.

The sureties on a special bond executed in a particular case are liable for no default outside such case, but are primarily liable to the extent of the bond for any default therein. The special bond does not discharge the other bonds in the particular case, but operates simply as a transfer of primary liability to the special bondsmen. After exhaustion of that bond the other bonds are liable. Longmire v. Fain, 89 Tenn. 393, 18 S.W. 70, 1890 Tenn. LEXIS 61 (1890).

Collateral References. Clerks of Courts 16, 73-75.

18-2-205. Entry and filing of bonds.

The bonds required in §§ 18-2-201 — 18-2-204, after being acknowledged before, approved and certified by the court, shall be entered upon the minutes within thirty (30) days, and shall then be recorded in the office of the county register of deeds and transmitted to the office of the county clerk for safekeeping.

Code 1858, § 331 (deriv. Acts 1794, ch. 1, §§ 2, 50); Shan., § 407; Code 1932, § 657; impl. am. Acts 1937, ch. 33, § 51; impl. am. Acts 1959, ch. 9, § 14; T.C.A. (orig. ed.), § 18-213; Acts 1998, ch. 677, § 16; 2013, ch. 315, § 18.

Compiler's Notes. Acts 2013, ch. 315, § 31 provided that the act, which amended this section, shall apply to the renewal or obtaining an official bond for any bonding after April 29, 2013.

Amendments. The 2013 amendment substituted “office of the county clerk” for “comptroller of the treasury” near the end of the section.

Effective Dates. Acts 2013, ch. 315, § 31. April 29, 2013.

NOTES TO DECISIONS

1. Suit on Bond — Exhibits.

When suit is brought upon the bond of a clerk, shall the original or certified copy thereof be produced; and, if a copy, shall it be from the court record or from the office of the secretary of state? This question was not determined in the case in which it arose. It is said that there is no special provision as to whether the original or a certified copy shall be produced when such bonds are sued on; and, if a copy, whether a copy from the court record or from the office of the secretary of state shall be the better evidence. Bramley v. Wilds, 77 Tenn. 674, 1882 Tenn. LEXIS 121 (1882).

18-2-206. Scope of liability on bonds.

The official bonds of clerks, executed under this code, are obligatory on the principal and sureties for every wrongful act or failure of duty in the clerk's official capacity, whether embraced in the condition of the bond or not, or growing out of a law passed subsequently to its execution.

Code 1858, § 335 (deriv. Acts 1849-1850, ch. 150, § 1); Shan., § 411; Code 1932, § 661; T.C.A. (orig. ed.), § 18-214.

Cross-References. Bonds of public officers, law applicable, §§ 8-19-302 — 8-19-304, 8-19-306.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14.

NOTES TO DECISIONS

1. Official Bond — Extent of Liability.

Sureties on an official bond are not liable for more than the amount of the penalty named therein, and such a bond does not bear interest from date of breach, or demand, or commencement of suit for the penalty. State ex rel. Terry v. Blakemore, 54 Tenn. 638, 1872 Tenn. LEXIS 100 (1872).

2. Bond as Commissioner — Limited Liability.

The liability of the clerk and master on a bond given as special commissioner to sell property is limited to accounting for and paying over moneys coming into his hands from sales made by himself under orders of court; the proper disposition of moneys otherwise coming into his hands, and of moneys arising from sales made by himself but retained under orders of court, and converted into a trust fund, is covered by the bond of the office proper. State ex rel. Terry v. Blakemore, 54 Tenn. 638, 1872 Tenn. LEXIS 100 (1872).

3. Fees for Notices — Liability.

Under § 35-505 (repealed), fixing the fees for notices of sale, attachment and nonresident notices and providing that the clerk of the court (now county clerk) shall require an affidavit from the publisher that the notice has appeared, the advertisement is recognized as an official act of the officer and the clerk and master is liable for such fees collected and for default in regard to them his sureties also become liable. State use of Herald Pub. Co. v. Whitworth, 98 Tenn. 263, 39 S.W. 10, 1896 Tenn. LEXIS 220 (1897).

18-2-207. Chancellors to examine bonds.

It is the duty of the chancellors, on the first day of each term of their respective courts, to examine the bonds of the respective clerks and masters of those courts, and to ascertain whether they are in conformity to law and whether the sureties on the bonds are good and solvent and worth the penalties of the bonds respectively.

Acts 1869-1870, ch. 37, § 1; Shan., § 412; Code 1932, § 662; T.C.A. (orig. ed.), § 18-215.

Cross-References. Examination of clerks' bonds, § 8-19-201.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 617.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14.

18-2-208. Examination of witnesses and records.

The chancellors, whenever necessary to arrive at a correct knowledge of the respective bonds and their sufficiency, shall summon witnesses and examine them on oath, and shall examine all records in any of the county or state offices, and all records and papers in the offices of the clerks and masters.

Acts 1869-1870, ch. 37, § 2; Shan., § 413; Code 1932, § 663; T.C.A. (orig. ed.), § 18-216.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14.

18-2-209. Orders to correct deficiencies in bond.

Whenever any chancellor in any manner determines that the bonds of any clerk and master of any court within the chancellor's judicial district are, from any cause, insufficient, the chancellor shall forthwith make a record of the fact on the minutes of the court, and order the clerk and master, within thirty (30) days from that date, to make the clerk and master's bonds sufficient by executing new bonds or giving additional security, and complying with any order of the chancellor in regard to the bonds.

Acts 1869-1870, ch. 37, § 3; Shan., § 414; mod. Code 1932, § 664; T.C.A. (orig. ed.), § 18-217.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 14.

18-2-210. Other courts and county legislative bodies also to examine bonds.

Sections 18-2-207 — 18-2-209 shall apply also to the clerks of the other courts of this state, and it shall be the duty of the judges of the supreme, circuit, criminal and special courts, at each term of those courts, respectively, and of the county legislative bodies at every quarterly meeting, to inquire into the bonds of their respective clerks, as the chancellors are required to do; and all the powers for this purpose vested in the chancellors are vested in the judges of the other courts and the county legislative body.

Acts 1869-1870, ch. 37, § 4; Shan., § 415; mod. Code 1932, § 665; impl. am. Acts 1978, ch. 934, §§ 7, 12, 36; T.C.A. (orig. ed.), § 18-218.

Cross-References. Examination of clerks' bonds by judges, § 8-19-201.

18-2-211. Time for examination of bonds.

Nothing in §§ 18-2-207 — 18-2-210 is to be construed to prevent the examination of bonds on any other than the first day of any term or meeting, but the examination shall be made at each term and quarterly meeting, as respectively provided, and the examination may be continued from day to day until a satisfactory conclusion is reached.

Acts 1869-1870, ch. 37, § 5; Shan., § 416; mod. Code 1932, § 666; impl. am. Acts 1978, ch. 934, §§ 7, 12, 36; T.C.A. (orig. ed.), § 18-219.

18-2-212. Grand jury examination of bonds.

The grand jury in each county shall inquire into the correctness and sufficiency of the bonds of all the clerks within the county, including the clerk and master of the chancery court, and, for this purpose, they may send for witnesses and examine all necessary records and papers. Should they find any bond of any of the clerks incorrect in form or insufficient in amount, or in the quality of the security on the bonds, it is their duty to return the fact to the court to which the clerk belongs, and thereupon it shall be the duty of the court, without delay, to make an order upon the clerk to execute within thirty (30) days, in lieu of such bond, a new bond, or give additional satisfactory security.

Acts 1869-1870, ch. 37, § 6; Shan., § 417; mod. Code 1932, § 667; T.C.A. (orig. ed.), § 18-220.

18-2-213. Removal for failure to execute new bond.

  1. Should any clerk or clerk and master fail to comply with the order of the clerk or clerk and master's court, it shall be the imperative duty of the court to remove the clerk or clerk and master, and appoint some other person in the clerk's or clerk and master's place.
  2. If a clerk elected by the people is removed, the appointment shall be to fill the unexpired term, but if a clerk and master, or other clerk whose appointment is by law vested in the court is removed, the appointment shall be for a full term of office.
  3. Ample power and authority are vested in the courts to take bond and security to carry into execution this section.

Acts 1869-1870, ch. 37, § 7; Shan., § 418; mod. Code 1932, § 668; T.C.A. (orig. ed.), § 18-221.

Cross-References. Term of office of clerk and master, Tenn. Const., art. VI, § 13; §§ 18-4-101, 18-5-101.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 617.

Cited: In re Appointment of Clerk & Master, 670 S.W.2d 215, 1984 Tenn. LEXIS 786 (Tenn. 1984).

Collateral References. Clerks of Courts 8.

Chapter 3
Supreme Court Clerks

18-3-101. Appointment — Tenure.

  1. The clerk of the supreme court shall be appointed by the judges of the supreme court and shall hold office for a period of six (6) years. The clerk of the supreme court shall be located at Nashville.
  2. Three (3) chief deputy clerks of the supreme court, one (1) each for the eastern, middle and western grand divisions, shall be appointed by the clerk of the supreme court, subject to the approval of the supreme court, to supervise and coordinate the business of the supreme court and intermediate appellate courts in their respective grand divisions. The chief deputy clerk for the eastern grand division shall be located at Knoxville. The chief deputy clerk for the middle grand division shall be located at Nashville. The chief deputy clerk for the western grand division shall be located at Jackson.

Code 1858, § 321 (deriv. Const. 1834, art. 6, § 13); Acts 1870, ch. 24, § 4; Shan., § 397; Code 1932, § 647; T.C.A. (orig. ed.), § 18-301; Acts 1993, ch. 70, § 8.

Cross-References. Clerks of supreme court to be clerks of court of appeals, § 16-4-106.

Clerks of supreme court to be clerks of court of criminal appeals, § 16-5-109.

Compensation of appellate clerks, § 8-23-105.

Grand divisions, title 4, ch. 1, part 2.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Comparative Legislation. Supreme court clerks:

Ala.  Code § 12-2-90 et seq.

Ark.  Code § 16-20-201 et seq.

Ga. O.C.G.A. § 15-2-40 et seq.

Ky. Rev. Stat. Ann. § 21A.030.

Miss.  Code Ann. § 9-3-13 et seq.

Mo. Rev. Stat. § 483-215 et seq.

N.C. Gen. Stat. § 7A-11.

Va. Code § 17-33 et seq.

Collateral References. Clerks of Courts 3.

18-3-102. Duties.

The clerk of the supreme court, in addition to the duties prescribed by chapters 1 and 2 of this title, is required to:

  1. Preserve the written opinions of the judges as other records of the clerk of the supreme court's office, subject to the inspection of all persons wishing to examine them, and to furnish certified copies of the written opinions, on demand, to any person applying and paying the lawful fees;
  2. Deliver to the attorney general and reporter the original opinions of the court within ten (10) days after the decision;
  3. Issue to the inferior courts, within sixty (60) days, and before the next term of the inferior court after the adjournment of the supreme court, certified copies of the opinions and judgments or decrees in all cases reversed and remanded;
  4. Pay over costs incurred in inferior courts, as provided in § 20-12-140;
  5. Note on the execution docket executions not returned at the time specified in the execution; and
  6. Perform such other duties as are or may be required of the clerk of the supreme court by law.

Code 1858, § 4088 (deriv. Acts 1823, ch. 54, § 5; 1829, ch. 60, § 1); Acts 1881, ch. 4, § 4; Shan., § 5902; mod. Code 1932, § 10102; T.C.A. (orig. ed.), § 18-302.

Cross-References. Cross index as to all parties in minute books and execution dockets, § 10-7-209.

Entry of decrees in chancery court records, § 21-1-811.

Fees for services, title 8, ch. 21, parts 4 and 5.

Opinions of supreme court, enrollment and delivery to attorney general, § 8-6-201.

Report and payment of revenues, §§ 9-2-108 — 9-2-122.

Services for court of appeals, § 16-4-106.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Collateral References. Clerks of Courts 1.

18-3-103 — 18-3-108. [Repealed.]

Compiler's Notes. Former §§ 18-3-103 — 18-3-108 (Code 1858, § 4090 (deriv. Acts 1855-1856, ch. 145, § 2); Shannon, § 5903; Code 1932, § 10103; Acts 1951, ch. 218, §§ 1-5 (Williams, §§ 10654.1-10654.5; T.C.A. (orig. ed.), §§ 18-304 — 18-308), concerning payment for supreme court record books and the duties of supreme court clerks with respect to disposition of transcripts, dockets and other documents, were repealed by Acts 1993, ch. 70, § 9.

18-3-109. Recess appointments.

If the office of clerk of the supreme court becomes vacant during the recess of the court, the chief justice of the supreme court may make a temporary appointment to fill it until the judges of the supreme court meet and make a permanent appointment.

Code 1858, § 322 (deriv. Acts 1823, ch. 14, § 1); Shan., § 398; Code 1932, § 648; T.C.A. (orig. ed.), § 18-309; Acts 1993, ch. 70, § 11.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

18-3-110. Removal.

  1. The clerk of the supreme court may be removed from office by the court for malfeasance, incompetency or neglect of duty.
  2. The reasons for removal shall be entered on the minutes of the court.

Code 1858, §§ 4091, 4092; Shan., §§ 5904, 5905; Code 1932, §§ 10104, 10105; T.C.A. (orig. ed.), § 18-310; Acts 1993, ch. 70, § 12.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.

Collateral References. Clerks of Courts 8.

18-3-111. Disposition of old court documents — Record retention plan.

The clerk of the supreme court shall dispose of or preserve old dockets, old transcripts, old records or any other books, documents, papers, etc., as directed by the chief justice of the supreme court in accordance with the records retention plan promulgated by the supreme court.

Acts 1993, ch. 70, § 10.

Chapter 4
Clerks Of Circuit, Criminal, Special and General Sessions Courts

Part 1
Circuit, Criminal and Special Courts

18-4-101. Election — Tenure.

  1. The clerks of the circuit and criminal courts and other special courts are elected by the qualified voters of the respective circuits and districts over which the local jurisdiction of the courts, respectively, extends.
  2. The clerks' terms of office are four (4) years.

Code 1858, § 324; Shan., § 400; mod. Code 1932, § 650; modified; T.C.A. (orig. ed.), § 18-401.

Cross-References. Consolidated retirement system, title 8, chs. 34-37, 39.

Deputies and assistants, §§ 8-20-101 — 8-20-111.

Election of clerks and terms of office, Tenn. Const., art. VI, § 13.

Salary, §§ 8-24-101 — 8-24-109.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 24.31.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Comparative Legislation. Circuit, criminal and other clerks:

Ala.  Code § 12-17-80 et seq.; § 12-17-140 et seq.

Ark.  Code § 16-20-301 et seq.; § 16-20-401 et seq.

Ga. O.C.G.A. § 15-6-50 et seq.

Ky. Rev. Stat. Ann. §§ 22A.040, 30A.010 et seq.

Miss.  Code Ann. §§ 9-1-39, 9-5-131 et seq.; § 9-7-121 et seq.

Mo. Rev. Stat. § 483.240 et seq.

N.C. Gen. Stat. §§ 7A-40, 7A-100 et seq.

Va. Code § 17-40 et seq.

Cited: Metro. Gov't of Nashville v. Affiliated Computer Servs., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 59622 (M.D. Tenn. July 17, 2008).

18-4-102. Chapter applicable to criminal and special courts.

This chapter applies to clerks of the criminal and other special courts established by law.

Code 1858, § 4084; Shan., § 5898; Code 1932, § 10098; T.C.A. (orig. ed.), § 18-407.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

18-4-103. Duties.

The clerk of each circuit court, in addition to the duties prescribed by chapters 1 and 2 of this title, is required to:

  1. At each term of the court, when the jury is discharged, make out and certify a list of the jury, with the number of days they have served and the amount due to each, and deliver the list to the county clerk, to be registered by the county clerk, and certificates issued thereon as prescribed by § 18-6-105;
  2. Make out and transmit to the clerk of the supreme court transcripts of the record, in all cases in which appeals in the nature of writs of error have been taken from the clerk of the circuit court's court, within forty (40) days after the rendition of the judgment, unless the case has been determined within forty (40) days of the session of the supreme court, or during such session, and in that event forthwith;
  3. Enter up judgment of the court on its records, after the verdict of a jury;
  4. Note on every execution or order of sale of land, the defendant's direction not to advertise the execution or order in a newspaper;
  5. Present to the judge of the circuit or criminal court all bills of costs for the clerk of the circuit court's certificate, in criminal cases, in which the state or county is liable for the costs;
  6. Record, at full length, on the minutes of the clerk of the circuit court's court, the papers returned into the court by a judge of the court of general sessions, for the purpose of having a condemnation of land levied on by execution from such judge, and order of sale;
  7. Enter, at full length, upon the minutes of the court, the presentment or indictment in cases of felony;
  8. Perform duties in relation to revenue as prescribed in §§ 9-2-108 — 9-2-122 and 9-2-135 [repealed];
  9. Notify the Tennessee bureau of investigation of final disposition of criminal proceedings against a person as soon as practicable but no later than thirty (30) days after final disposition of the criminal proceedings; and
  10. Perform such other duties as are, or may be, required by law.

Code 1858, § 4077 (deriv. Acts 1805, ch. 45, § 2; 1827, ch. 49, § 18; 1835-1836, ch. 17, § 11; 1841-1842, ch. 129, §§ 1, 5; 1843-1844, ch. 215, §§ 3, 9; 1849-1850, ch. 120, § 1); Acts 1866-1867, ch. 36, § 7; Shan., § 5892; Code 1932, § 10093; impl. am. Acts 1978, ch. 934, §§ 22, 36; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 18-402; modified; Acts 1998, ch. 1080, § 9; 2016, ch. 739, § 1.

Compiler's Notes. Section 9-2-135, referred to in this section, was repealed by Acts 1985, ch. 118, § 7.

This section may be affected by T.R.A.P. 24 concerning content and preparation of the record on appeal.

Amendments. The 2016 amendment added present (9) and redesignated former (9) as (10).

Effective Dates. Acts 2016, ch. 739, § 3. April 7, 2016.

Cross-References. Accounting for fees, title 8, chapter 22.

Annual audit, § 4-3-304.

Destruction of records upon dismissal or acquittal, title 40, ch. 32.

Fees, title 8, ch. 21, part 4.

Handling payments by delinquent revenue collectors, §§ 67-1-1612 — 67-1-1614.

Payment for office supplies, § 8-26-104.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 24.31, 31.50, 33.10.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 217; 6 Tenn. Juris., Clerks of Court, § 12; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 36.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Cited: Crabtree v. Bank of Winchester, 108 Tenn. 483, 67 S.W. 797, 1901 Tenn. LEXIS 49 (1902); Louisville & N. R. Co. v. Ray, 124 Tenn. 16, 134 S.W. 858, 1910 Tenn. LEXIS 38 (1911); Baker Watkins Supply Co. v. Fowlkes, 129 Tenn. 663, 168 S.W. 153, 1914 Tenn. LEXIS 157 (1914); Tennessee Electric Power Co. v. Hanson, 18 Tenn. App. 542, 79 S.W.2d 818, 1934 Tenn. App. LEXIS 57 (Tenn. Ct. App. 1934); State v. Bouchard, 563 S.W.2d 561, 1977 Tenn. Crim. App. LEXIS 265 (Tenn. Crim. App. 1977); Davis v. Davis, 924 S.W.2d 351, 1996 Tenn. LEXIS 356 (Tenn. 1996).

NOTES TO DECISIONS

1. Indictments.

In copying indictment upon the minutes and into the transcript on appeal, the clerk should copy all endorsements found thereon. Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899).

2. —Caption.

If the caption of an indictment states that the grand jury was composed of good and lawful men it is sufficient in that regard. Bonds v. State, 8 Tenn. 142, 8 Tenn. 143, 1827 Tenn. LEXIS 25 (1827).

3. —“True Bill” Endorsement.

An indictment for a felony, otherwise valid, is not vitiated by the clerk's failure, in spreading it upon the minutes, to copy the endorsement “A true bill,” and the foreman's signature thereto, if there is a proper entry of record showing the return of such indictment by the grand jury. State v. Herron, 86 Tenn. 442, 7 S.W. 37, 1887 Tenn. LEXIS 60 (1888).

In copying indictment upon the minutes and into the transcript on appeal, the clerk should copy all endorsements found thereon, and it is a fatal defect if the indictment, as copied into the transcript, fails to show the endorsement “a true bill,” signed by the foreman of the grand jury. Bird v. State, 103 Tenn. 343, 52 S.W. 1076, 1899 Tenn. LEXIS 114 (1899).

4. Judgment Entry.

It is the duty of the clerk to enter judgment as soon as he has entered the verdict, and he needs no authority from the court, either in the form of a written order or judgment signed by the court, approved by counsel, or otherwise. Wind Rock Coal & Coke Co. v. Robbins, 1 Tenn. App. 734, — S.W. —, 1926 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1926).

Contrary to the common law practice, it was the duty of the clerk to enter judgment on the jury's verdict as soon as it was returned, and no authority from the court or any one else was required. McAlester v. Monteverde, 22 Tenn. App. 14, 115 S.W.2d 257, 1937 Tenn. App. LEXIS 71 (Tenn. Ct. App. 1937).

It was not error for trial judge to enter verdict immediately after verdict but rather it was his duty to do so both under the ancient common law and the decisions of the Tennessee Supreme Court. Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 1965 Tenn. LEXIS 580 (1965).

5. —Motion for New Trial — Filing.

The fact that the verdict and judgment were not entered until a subsequent term did not deprive a contestant of his right to file a motion for a new trial raising any question arising upon the record which was made and preserved at the trial term since he is not required to file such motion until after a judgment is entered. McAlester v. Monteverde, 22 Tenn. App. 14, 115 S.W.2d 257, 1937 Tenn. App. LEXIS 71 (Tenn. Ct. App. 1937).

6. —Bill of Exceptions.

The taking and filing of a bill of exceptions does not depend upon the entry of disposition of a motion for a new trial except in those cases where a motion for a new trial having been filed at one term is carried over and disposed of at another term, and the exception exists only by virtue of § 27-1-110. McAlester v. Monteverde, 22 Tenn. App. 14, 115 S.W.2d 257, 1937 Tenn. App. LEXIS 71 (Tenn. Ct. App. 1937).

7. —Subsequent to Term.

Where the appellant was not deprived of any of his rights, the court had jurisdiction to enter an order recording the verdict and judgment at a term subsequent to the trial term at which the verdict was actually returned. McAlester v. Monteverde, 22 Tenn. App. 14, 115 S.W.2d 257, 1937 Tenn. App. LEXIS 71 (Tenn. Ct. App. 1937).

8. Interest on Judgment.

Interest is computed on judgment from the date the judgment is entered after motion for new trial is overruled. Monday v. Millsaps, 197 Tenn. 295, 271 S.W.2d 857, 1954 Tenn. LEXIS 484 (1954).

9. Effect of Other Law.

Sections 40-4001 — 40-4004 (now § 40-32-101 — 40-32-104), which provides for the destruction of certain court records, impliedly amends this section which heretofore has provided for the permanent retention of such records. Martin v. State, 519 S.W.2d 793, 1975 Tenn. LEXIS 715 (Tenn. 1975).

10. Final Judgment Not Amenable.

Since a judgment becomes final 30 days after its entry by the clerk on the court's minutes in the absence of some procedural action to delay its efficacy, an attempt by a trial judge to amend a judgment entered nearly two and one-half years before was a nullity and completely void. Ray v. State, 576 S.W.2d 598, 1978 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. 1978).

Collateral References. 15A Am. Jur. 2d Clerks of Court §§ 21-27.

14 C.J.S. Clerks of Courts §§ 33-37.

Clerks of Courts 1.

18-4-104. Adjournment of court.

Whenever the circuit court judge fails to hold court as required by law, the clerk may, at the expiration of the prescribed time, adjourn the court until the next term.

Code 1858, § 4079 (deriv. Acts 1817, ch. 130, § 1; 1835-1836, ch. 5, § 5); Shan., § 5893; Code 1932, § 10093a; T.C.A. (orig. ed.), § 18-403.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Collateral References. 21 C.J.S. Courts § 150.

Courts 76.

18-4-105. Recognizances on adjournment.

The clerk is authorized, in cases where the court is adjourned pursuant to § 18-4-104, to enter forfeiture of all recognizances previously taken, for the appearance of parties or witnesses, where the parties or witnesses, on being called by the sheriff, fail to appear in pursuance of the recognizances, or to take new recognizances from such of the parties as do appear, according to law, for their appearance at the next term of the court.

Code 1858, §§ 4080, 4081 (deriv. Acts 1817, ch. 130, § 1); Shan., §§ 5894, 5895; Code 1932, §§ 10094, 10095; T.C.A. (orig. ed.), § 18-404.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

18-4-106. Refusal to give new recognizance.

If any person, bound in a recognizance to appear, appears accordingly, but fails or refuses to enter into a new recognizance, similar to and of the purport and effect of the previous recognizance, for the person's appearance at the next term, the person shall be deemed to have surrendered to the sheriff, and shall be in custody until the person enters into such recognizance as is by law required upon surrender by bail in like cases.

Code 1858, § 4082 (deriv. Acts 1817, ch. 130, § 1); Shan., § 5896; Code 1932, § 10096; T.C.A. (orig. ed.), § 18-405.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

18-4-107. Proceedings on forfeitures.

The same proceedings shall be had in all cases for forfeitures entered by the clerk, in pursuance of §§ 18-4-104 — 18-4-106, as if the same had been entered by order of court.

Code 1858, § 4083 (deriv. Acts 1817, ch. 130, § 1); Shan., § 5897; Code 1932, § 10097; T.C.A. (orig. ed.), § 18-406.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

Collateral References. Clerks of Courts 36.

Part 2
Courts of General Sessions

18-4-201. Compensation of clerk of general sessions court.

  1. The clerk of the circuit court, when acting as clerk of the court of general sessions, shall receive the compensation provided by law for circuit court clerks, as fixed by § 8-24-102. The fees, commissions and emoluments of the clerk of the court of general sessions shall constitute part of the fees, commissions and emoluments of the office of the clerk of the circuit court. The clerk shall receive such additional amount for the clerk's services as clerk of the court of general sessions as may be fixed by any private act in effect on March 11, 1959, or thereafter enacted affecting such county.
  2. However, the clerk of any special court serving as a clerk of general sessions court as provided in § 16-15-301 shall receive only the fees, commissions and emoluments as provided by law for the general sessions court, and the compensation received shall be in addition to the compensation that the clerk receives for the clerk's services in the special court or courts. The compensation of the clerk shall not exceed the maximum statutory amount for the circuit court as allowed by law.

Acts 1959, ch. 109, § 16; 1963, ch. 216, § 1; T.C.A., § 18-408.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 11.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

NOTES TO DECISIONS

1. Construction with Other Sections.

When this section and § 8-24-102 are read together, they mean: “Where a circuit court clerk also acts as general sessions clerk, he shall be entitled to the benefits of § 8-24-102 which provides that he may retain fees up to the maximum allowed compensation, including fees received as general sessions clerk.” Stone v. Halsell, 648 S.W.2d 949, 1982 Tenn. App. LEXIS 450 (Tenn. Ct. App. 1982).

18-4-202. Financial report of general sessions court filed by clerk.

It is the duty of the clerk of the court of general sessions to make and file with the county clerk of the county for transmission to each regular quarterly session of the county legislative body a complete detailed financial report of all receipts and disbursements of the court of general sessions for the previous quarter.

Acts 1959, ch. 109, § 16; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A., § 18-409.

Law Reviews.

The Tennessee Court System — General Sessions Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 375.

18-4-203. Powers and duties of clerk.

  1. The clerk of the general sessions court has concurrent authority with the judge to issue warrants and other process and writs, other than those that the law requires to be issued only by a judicial officer, and has the authority to set the amount of bond in the absence of the judge.
  2. It is the duty of the clerk of the general sessions court to:
    1. Keep all dockets required by title 16, chapter 15;
    2. Write all minute entries required;
    3. Promptly make any and all entries necessitated by §§ 16-15-101 - 16-15-711, 18-4-201, 18-4-202, 20-12-143, and 27-5-108, and former §§ 40-118, 40-424, and 40-425 (repealed); and
    4. Notify the Tennessee bureau of investigation of final disposition of criminal proceedings against a person as soon as practicable but no later than thirty (30) days after final disposition of the criminal proceedings.
  3. In counties having a population of not less than twenty thousand seven hundred (20,700) nor more than twenty-one thousand seven hundred (21,700), the clerk of the general sessions court has authority to issue search warrants and peace warrants.

Acts 1959, ch. 109, § 17; 1972, ch. 486, § 1; T.C.A., § 18-410; 2016, ch. 739, § 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Sections 40-118, 40-424 and 40-425, referred to in subsection (b) of this section, are now codified at §§ 40-1-109, 40-4-117 and 40-4-118 (repealed), respectively.

Amendments. The 2016 amendment rewrote (b), which read, “It is the duty of the clerk of the general sessions court to keep all dockets required by title 16, chapter 15, to write all minute entries required and to promptly make any and all entries necessitated by §§ 16-15-101 — 16-15-711, 18-4-201, 18-4-202, 20-12-143 and 27-5-108, and former §§ 40-118, 40-424 and 40-425 (repealed).”

Effective Dates. Acts 2016, ch. 739, § 3. April 7, 2016.

Cross-References. Authority of clerks to issue arrest warrants, § 40-6-214.

Persons whose compensation is contingent upon issuance or nonissuance are prohibited from issuing a search warrant, an arrest warrant or mittimus, § 40-5-106.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, §§ 11, 12.

Law Reviews.

Constitutional Law — 1961 Tennessee Survey (II) (James C. Kirby, Jr.), 15 Vand. L. Rev. 847.

Pleadings, Motions and Pre-Trial Procedure, 4 Mem. St. U.L. Rev. 219.

The Tennessee Court System — General Sessions Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 375.

Attorney General Opinions. Clerks of general sessions and circuit courts do not have authority to issue immediate, pre-trial writs of possession, OAG 01-094 (6/7/01).

Cited: State ex rel. Lewis v. State, 208 Tenn. 534, 347 S.W.2d 47, 1961 Tenn. LEXIS 316 (1961); Dockery v. Dockery, 559 S.W.2d 952, 1977 Tenn. App. LEXIS 309 (Tenn. Ct. App. 1977).

Chapter 5
Clerks of Chancery Court

18-5-101. Appointment — Tenure.

The clerk and masters of the chancery courts are appointed by the respective chancellors and hold their offices for six (6) years.

Code 1858, § 323 (deriv. Const. 1834, art. 6, § 13); Shan., § 399; Code 1932, § 649; T.C.A. (orig. ed.), § 18-501.

Cross-References. Appointment of clerk and master and term of office, Tenn. Const., art. VI, § 13; §§ 18-2-213, 18-4-101.

Compensation, § 8-24-102.

Consolidated retirement system, title 8, chs. 34-37, 39.

Deputies and assistants, title 8, chapter 20.

Fees for services, title 8, ch. 21, part 4, §§ 8-21-601, 8-21-602.

Report and payment of revenues, §§ 9-2-108 — 9-2-122.

Retirement system for county officials (superseded), Vol. 3 Appendix.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Comparative Legislation. Chancery court clerks:

Ark.  Code § 16-20-301 et seq.

Miss.  Code Ann. § 9-5-131 et seq.

NOTES TO DECISIONS

1. Office and Duties of Master and Clerk United.

In the constitution of our courts of chancery, we have united the office and duties of master, so far as they exist under our system, with those of the clerk. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836).

2. Resignation and Reappointment.

The term of a clerk and master may not be manipulated and altered by the feigned resignation and a simultaneous reappointment by the chancellor prior to the termination of the current term of office of six years; such bogus resignations and reappointments are to be disregarded in determining the lawful tenure of a clerk and master. In re Appointment of Clerk & Master, 670 S.W.2d 215, 1984 Tenn. LEXIS 786 (Tenn. 1984), cert. denied, Marshall v. McMahan, 469 U.S. 981, 105 S. Ct. 385, 83 L. Ed. 2d 320, 1984 U.S. LEXIS 4281 (1984).

A clerk and master may lawfully resign his office prior to the expiration of his six-year term of office, but, if he does so, he may not be reappointed to that office unless some other person has intervened as such clerk and master by a bona fide appointment. In re Appointment of Clerk & Master, 670 S.W.2d 215, 1984 Tenn. LEXIS 786 (Tenn. 1984), cert. denied, Marshall v. McMahan, 469 U.S. 981, 105 S. Ct. 385, 83 L. Ed. 2d 320, 1984 U.S. LEXIS 4281 (1984).

Collateral References. Clerks of Courts 3.

18-5-102. Duties.

The clerk and master of the chancery court, in addition to the duties prescribed by chapters 1 and 2 of this title, is required to:

  1. Keep a rule docket, in which shall be entered the names of the complainants and defendants in full, the names of the attorneys and counsel, a minute of the date of the issuance and return of process, with the return on the process, and a note of all the orders and proceedings made at office;
  2. Keep a well-bound book, in which shall be entered, under the name of each case, the depositions taken and filed in the case, the names of the witnesses, and the date of the filing, and by whom. This book may be dispensed with by keeping the rule docket in such a way as to enable the entries required in this section to be made in the docket, without interfering with the entries regularly belonging to that docket;
  3. Issue all original, mesne and final process from the court, make orders of publication for defendants, grant decrees pro confesso for want of answer, hear exceptions to bills, answers and reports, subject at all times to the control, direction and supervision of the chancellor; and
  4. Perform such other duties as are, or may be, by law required.

Code 1858, § 4085 (deriv. Acts 1801, ch. 6, §§ 44, 46; 1835-1836, ch. 20, § 3); Shan., § 5899; Code 1932, § 10099; T.C.A. (orig. ed.), § 18-502.

Cross-References. Accounting for fees, title 8, chapter 22.

Annual audit, § 4-3-304.

Fees, title 8, ch. 21, part 4.

Fees for accounting made in decedents' estates, § 30-2-611.

Notice of accounting in decedents' estates given by, § 30-2-603.

Payment for office supplies, § 8-26-104.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 631, 632, 642.

Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Attorney General Opinions. Compensation for clerk and master serving as substitute judge not authorized, OAG 99-087 (4/8/99).

Cited: Kelton v. Snell, 689 S.W.2d 186, 1985 Tenn. App. LEXIS 2668 (Tenn. Ct. App. 1985).

NOTES TO DECISIONS

1. Deeding Property.

Former T.C.A. § 67-5-2706 did not expressly state that a clerk and master was empowered or directed to make a deed to a person who had exercised that individual's statutory right to redeem property; moreover, T.C.A. § 21-1-701, T.C.A.§ 18-1-105, T.C.A. § 18-5-102, and T.C.A. § 18-5-103 did not provide that such a clerk was authorized to make a deed to one who had properly exercised his or her right of redemption, and therefore a writ of mandamus was properly denied in a case where a clerk and master refused to issue a fee simple deed to a redeemer in a tax sale since there was no mandate to do so, the action was taken on behalf of all of a decedent's heirs as tenants in common, and to do so would have conflicted with a trial court's order. Jones v. Anderson, 250 S.W.3d 894, 2007 Tenn. App. LEXIS 608 (Tenn. Ct. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 123 (Tenn. Feb. 25, 2008).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 21-27.

14 C.J.S. Clerks of Courts §§ 33-47.

Clerks of Courts 1.

18-5-103. Powers as master in chancery.

The clerk and master of the chancery court is authorized to administer oaths and perform all the functions of masters in chancery, unless restrained by the provisions of law.

Code 1858, § 4086; Shan., § 5900; Code 1932, § 10100; T.C.A. (orig. ed.), § 18-503.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 11.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Office and Duties of Master and Clerk United.

In the constitution of our courts of chancery, we have united the office and duties of master, so far as they exist under our system, with those of the clerk. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836).

2. Reference to Take Testimony.

Where perishable property was attached and the receiver, appointed to take care of the property, filed motion for costs and compensation, it was error to refer the matter to the clerk to take testimony as to such expense and compensation, the clerk having no power to take testimony in such matters. Sklar v. Bernstein, 7 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1928).

3. Deeding Property.

Former T.C.A. § 67-5-2706 did not expressly state that a clerk and master is empowered or directed to make a deed to a person who has exercised that individual's statutory right to redeem property; moreover, T.C.A. § 21-1-701, T.C.A.§ 18-1-105, T.C.A. § 18-5-102, and T.C.A. § 18-5-103 did not provide that such a clerk was authorized to make a deed to one who had properly exercised his or her right of redemption, and therefore a writ of mandamus was properly denied in a case where a clerk and master refused to issue a fee simple deed to a redeemer in a tax sale since there was no mandate to do so, the action was taken on behalf of all of a decedent's heirs as tenants in common, and to do so would have conflicted with a trial court's order. Jones v. Anderson, 250 S.W.3d 894, 2007 Tenn. App. LEXIS 608 (Tenn. Ct. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 123 (Tenn. Feb. 25, 2008).

Collateral References.

Power of successor or substituted master or referee to render decision or enter judgment on testimony heard by predecessor. 70 A.L.R.3d 1079.

Clerks of Courts 64-70.

18-5-104. Adjournment of court.

The master in chancery may adjourn court, in the absence of the chancellor, from day to day, for three (3) days in succession, or longer if, in the master in chancery's judgment, the interest of the public requires it, and then adjourn it to the court in course or to the time fixed by the chancellor for holding a special term.

Code 1858, § 4087 (deriv. Acts 1831, ch. 50, § 1); Shan., § 5901; Code 1932, § 10101; T.C.A. (orig. ed.), § 18-504.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 639.

18-5-105. Investment of funds of minors and incompetents.

Clerks and masters of the chancery courts, having in their hands funds belonging to minors or incompetents who have no regular guardian or other custodian or other person authorized by law to demand the funds, may invest the funds as provided in § 8-21-401(i)(8) or, if applicable, § 8-21-409(f)(1) without prior specific order of the court if, in their best judgment, it appears that the funds will be idle and payment of funds will not be demanded for a period of thirty (30) days from and after receipt of funds.

Acts 1961, ch. 239, § 1; T.C.A., § 18-506; Acts 2010, ch. 969, § 1.

Amendments. The 2010 amendment substituted “§ 8-21-401(i)(8) or, if applicable, § 8-21-409(f)(1)” for “former § 18-5-106 [repealed]”.

Effective Dates. Acts 2010, ch. 969, § 2. May 26, 2010.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

18-5-106. [Repealed.]

Compiler's Notes. Former § 18-5-106 (Acts 1961, ch. 239, § 2; T.C.A., § 18-507; Acts 1983, ch. 416, § 1), concerning authorized investments, fees and interest, was repealed by Acts 2005, ch. 429, § 1, effective January 1, 2006.

18-5-107. [Repealed.]

Compiler's Notes. Former § 18-5-107 (Acts 1978, ch. 822, §§ 1, 2; T.C.A., § 18-508), concerning interest payments on funds invested by court clerks, was repealed by Acts 1983, ch. 416, § 1.

Chapter 6
County Clerks

18-6-101. Election — Term of office — Clerk of county legislative body.

  1. The county clerks are elected by the qualified voters of the respective counties over which the local jurisdiction of the county legislative body, respectively, extends.
  2. Their term of office is four (4) years.
  3. The county clerk shall be the clerk of the county legislative body.
  4. If any vacancy occurs in the office of county clerk, the vacancy shall be filled as provided for in § 5-1-104(b).

Code 1858, § 324 (deriv. Const. 1834, art. 6, § 13); Shan., § 400; mod. Code 1932, § 650; modified; impl. am. Acts 1978, ch. 934, § 7; Acts 1978, ch. 934, § 22; T.C.A. (orig. ed.), § 18-601; modified; Acts 1981, ch. 318, § 8.

Cross-References. Annual audit, § 4-3-304.

Appointment and term of office of attorney general and reporter, Tenn. Const., art. VI, § 5.

Consolidated retirement system, title 8, chs. 34-37, 39.

County clerk to be elected, term of office, Tenn. Const., art. VII, § 1.

Deputies and assistants, title 8, chapter 20.

Incompetence to act, §§ 5-6-114, 5-6-115.

Retirement system for county officials (superseded), Vol. 3, Appendix.

Salary, §§ 8-24-101 — 8-24-109.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 6; 8 Tenn. Juris., Counties, § 18.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

Comparative Legislation. County court clerks:

Ark.  Code § 14-14-1301 et seq.

Ga. O.C.G.A. § 15-6-50 et seq.

Ky. Rev. Stat. Ann. § 64.005 et seq.

Miss.  Code Ann. § 9-9-29.

Mo. Rev. Stat. § 51.010 et seq.

Cited: Carver v. Dennis, 886 F. Supp. 636, 1995 U.S. Dist. LEXIS 6927 (M.D. Tenn. 1995).

Collateral References. Clerk of Courts 7.

18-6-102. Name change.

  1. County court clerk shall assume the title “county clerk.”
  2. The county clerk shall assume all the duties of the county court clerk and all statutes referring to county court clerks shall apply with equal force and effect to the county clerk.
  3. The office of county clerk shall remain an office in this state regardless of the abolition of any county quarterly court.

Code 1858, § 324 (deriv. Const. 1834, art. 6, § 13); Shan., § 400; mod. Code 1932, § 650; modified; impl. am. Acts 1978, ch. 934, § 7; Acts 1978, ch. 934, § 22; T.C.A. (orig. ed.), § 18-601; modified.

Cross-References. County clerk as clerk of county legislative body, § 18-6-101.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 6.

18-6-103. Certain boards of commissioners authorized to appoint own clerks.

  1. Notwithstanding the duties prescribed for the county clerk in chapters 1 and 2 of this title and §§ 18-6-101, 18-6-102 and 18-6-104, the board of commissioners in any county with a population of six hundred thousand (600,000) or more is authorized to employ its own clerk to serve at its meetings and to employ its own clerical and administrative help reasonably necessary to take the minutes of its meetings and to transcribe the minutes, subject to the approval of the board of commissioners, as official records of the county.
  2. The board of commissioners shall appropriate such funds as are necessary to cover the cost of the clerk and staff provided for in subsection (a).

Acts 1980, ch. 667, § 1; T.C.A., § 18-601; modified.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12.

18-6-104. Duties as clerk.

The county clerk, in addition to the duties prescribed by chapters 1 and 2 of this title, is required, as clerk to:

  1. Act as clerk of the county legislative body;
  2. Keep a docket of all the causes to be tried in the court;
  3. Enter upon the docket every suit, motion and action that may come before the court for trial;
  4. Produce to the judge of the circuit court, for the judge's examination at the first circuit court in the judge's county after the first Monday in April in each year, on the second day of the term, the bonds of all officers taken during such year by the county legislative body;
  5. Spread on the records of court every bond required to be recorded; and
  6. Receive and preserve the journals of congress, statutes and other public documents entrusted to the county clerk by law, and deliver them to the county clerk's successor.

Code 1858, § 4067 (deriv. Acts 1831, ch. 6, § 1; 1843-1844, ch. 103, § 11; 1847-1848, ch. 113; 1855-1856, ch. 253, §§ 7, 10, 11); Shan., § 5882; Code 1932, § 10082; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A. (orig. ed.), § 18-602.

Compiler's Notes. The term “court” in subdivisions (2), (3) and (5) apparently refers to the judicial authority formerly residing in the monthly county court.

Cross-References. Authentication of instruments by or to clerk, § 66-22-105.

Bond for disbursement of assessments for proposed levee, improvement or drainage district, § 69-6-130.

Bond for levee and drainage assessment collections, § 69-6-113.

Certain boards of commissioners authorized to appoint own clerks, § 18-6-103.

Copy of probate or acknowledgment, § 10-7-109.

County clerk as clerk of county legislative body, § 18-6-101.

Drainage assessment book for district in more than one county, preparation, entries, certified copy to trustee of other county, § 69-5-1104.

Drainage assessment book showing extended assessments of refunding bonds, § 69-5-926.

Drainage record book, keeping, § 69-5-140.

Drainage record book, sale of tract for collection of assessment, recording, § 69-5-816.

Fees for additional services for drainage districts, § 69-5-141.

Fees for services with respect to, road improvement districts, § 54-12-157.

Fees for specified duties rendered in connection with motor vehicle registration act, § 55-6-104.

Funds from special assessment for proposed levee, improvement or drainage district turned over to for disbursement, § 69-5-127.

Marks or brands of cattle, fee for recording, § 44-7-109.

Motor vehicle registration law, duties, § 55-6-105.

Pedigreed male animals for breeding, fee for registering, § 44-7-301.

Record kept of proceedings to hospitalize mentally ill person, § 33-3-502.

Refunding bonds for outstanding indebtedness of any drainage or levee district, jurisdiction to issue, § 69-5-921.

Road improvement assessment book duty to make, § 54-12-410.

Road improvement record book, maintenance and use, § 54-12-156.

Specific fees authorized, § 8-21-401, title 8, ch. 21, part 7.

Summons, issuance for hearing on proposed levee, improvement or drainage district, § 69-5-120.

Tobacco warehousing and sale law, attending prosecutions for violations, § 43-19-112.

Warehouse proprietor, administering oath to as tobacco inspector, § 43-19-201.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

NOTES TO DECISIONS

1. Ensuring Performance of Duties.

It was the duty of the county court to see that the clerk performed his duties, but if this was not done, and the court employed a third person to perform any part of his official duties, the court could not recover the amount paid for such services in an action against the clerk or his administrator. Alexander v. Marshall, 40 Tenn. 475, 1859 Tenn. LEXIS 134 (1859).

Collateral References. 15A Am. Jur. 2d Clerks of Courts §§ 21-27.

14 C.J.S. Clerks of Courts §§ 33-47.

Clerks of Courts 1.'

18-6-105. Duties as to revenue.

The county clerk has the following duties in regard to revenue:

  1. List in a book provided for that purpose all appropriations and allowances made by the county legislative body, all claims of jurors and officers for attendance, or other claim chargeable against the county, setting forth the character, description and for what purpose made, including the date and amount of the allowance, and the book and page of the minutes where the order may be found;
  2. Issue orders or certificates to the parties entitled and endorse on the orders or certificates that they have been registered in the county clerk's office. The endorsement shall be necessary to authorize the county mayor to issue the county mayor's warrant for the amount;
  3. Make out at the first meeting of the county legislative body in each year a balance sheet of revenue and disbursements of the county for the preceding year, giving the several sources of the revenue and items of disbursement plainly, and post the sheet on the outside wall of the courthouse;
  4. Perform the acts in relation to state revenue prescribed in title 8, chapter 19, title 9, chapters 2 and 3, title 26, chapter 5, title 30, chapter 8, parts 2-5, title 57, chapter 5, parts 1-4 and title 67; and
    1. Collect franchise fees pursuant to franchise agreements with municipalities, if so authorized by resolution of the legislative body of any municipality having a metropolitan form of government and a population of over four hundred fifty thousand (450,000), according to the 1990 federal census or any subsequent federal census;
    2. Collect the enrollment fees and provide decals in connection with municipal programs to combat auto theft, if so authorized by ordinance of the legislative body of any municipality having a metropolitan form of government and a population of over four hundred fifty thousand (450,000), according to the 1990 federal census or any subsequent federal census; and
    3. Any powers concerning fee or tax collection that may be granted to the county clerk by the legislative body of any municipality having a metropolitan form of government and a population of more than four hundred fifty thousand (450,000), according to the 1990 federal census or any subsequent federal census, shall not affect the powers granted to the director of finance under the charter of the municipality to make decisions concerning the official depository for fees and taxes as well as depository procedures. The county clerk shall not receive a commission for receiving and paying over the fees and taxes.

Code 1858, § 4068 (deriv. Acts 1827, ch. 49, §§ 16, 27); Shan., § 5883; Code 1932, § 10083; modified; impl. am. Acts 1978, ch. 934, §§ 7, 12, 16, 22, 36; T.C.A. (orig. ed.), § 18-603; Acts 1994, ch. 758, § 6; 2003, ch. 90, §  2.

Compiler's Notes. For table of populations of Tennessee municipalities see Volume 13 and its supplement.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Accounting for fees, title 8, chapter 22.

Bond for assessments collected for drainage or levee district, § 69-5-805.

Delivery of jury lists by circuit court clerk, § 18-4-103.

Fees for services, title 8, ch. 21, parts 4, 7.

Inheritance tax law, duties, § 67-8-406.

Payment for office supplies, § 8-26-104.

Report and payment of revenues, §§ 9-2-108 — 9-2-122.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

NOTES TO DECISIONS

1. County Warrants.

Where county warrants are regular on their face the burden is on the county to prove their invalidity. Macon County v. Dixon, 20 Tenn. App. 425, 100 S.W.2d 5, 1936 Tenn. App. LEXIS 34 (Tenn. Ct. App. 1936).

2. Best Evidence.

In an action to determine the validity of county warrants, it was wrong to exclude testimony relating to the preparation and submission of claims on the ground that the county records were the best evidence when the county held the records and refused to produce them. Macon County v. Dixon, 20 Tenn. App. 425, 100 S.W.2d 5, 1936 Tenn. App. LEXIS 34 (Tenn. Ct. App. 1936).

Collateral References. 14 C.J.S. Clerks of Courts §§ 39, 40.

Deposits in Court 3.

18-6-106. Administration of estates.

    1. Notwithstanding any law or public, private, special or local act to the contrary, no county clerk shall serve as clerk of a court with probate jurisdiction. In any county in which the county clerk is performing this function, the duties as to administration of estates and guardian appointments shall be vested in either the clerk of the court with probate jurisdiction or the clerk and master. In any county in which the county clerk is the only clerk of the court with probate jurisdiction, these duties shall be transferred to the clerk and master.
      1. Subdivision (a)(1) shall not apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

        not less than  nor more than

        44,200 44,300

        71,100 71,200

      2. In the counties listed in subdivision (a)(2)(A), the county clerk shall continue to serve as clerk of the court with probate jurisdiction and the clerk shall continue to exercise the same powers and duties as it exercised on June 30, 2003.
    3. Subdivision (a)(1) shall not apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

      not less than  nor more than

      12,800 12,900

      27,100 27,200

      43,100 43,200

      62,300 62,400

      182,000 182,100

    4. Effective July 1, 2014, in counties having a population of not less than forty-one thousand (41,000) nor more than forty-one thousand one hundred (41,100), according to the 2010 federal census or any subsequent federal census, all clerical duties and responsibilities for the probate court currently exercised by the circuit court clerk shall transfer to the clerk and master. On such date, the clerk and master shall assume all duties and responsibilities with respect to the administration of estates, guardian appointments and other probate matters. All probate files, records and other documents maintained for the probate court in such counties shall be transferred to the custody of the clerk and master.
  2. The clerk of the court having probate jurisdiction has the following duties as to the administration of estates:
    1. Administer to every administrator or executor an oath to perform the will of the deceased, or for the faithful performance of the administrator's or executor's duty; provided, that in the alternative, the oath of the administrator or executor may be sworn or affirmed in the presence of a notary public and the acknowledgment of the representative's oath, when certified by the notary public, shall be presented to the appropriate clerk;
    2. Except as provided in § 30-1-201, take from every such representative a bond, with two (2) or more able sureties, or one (1) corporate surety, in an amount not exceeding double the value of the estate and not less than the value of the estate, payable to the state of Tennessee, conditioned as is shown in § 30-1-203;
    3. Issue to the representative letters of administration or testamentary, authorizing the representative to administer the estate of the deceased;
    4. Receive of every administrator or executor the inventory the administrator or executor may return of the decedent's estate, and cause the administrator or executor to verify it by the administrator's or executor's oath, and present the inventory to the court;
    5. Record the inventory, if it be found regular by the court, in the book of inventories;
    6. Receive from every personal representative the personal representative's account of sales, and cause the personal representative to verify the account of sales by the personal representative's oath, and present the account of sales to the court, and record the account of sales if the court finds the account of sales regular;
    7. Take and state, once every year, in vacation, at the clerk's office, the accounts of every personal representative of any deceased person, after the lapse of fifteen (15) months from the personal representative's qualification;
    8. Compel the accounting party, by subpoena, to come before the clerk once every year for the purpose of settling the accounting party's accounts;
    9. Present to the court, in writing, the names of those personal representatives and guardians who refuse to answer the subpoena, or who fail to settle; and also the names of the minors in their county, of the clerk's knowledge, whose guardians are in default, and the sureties of whose guardians are dead, removed out of the state or become insolvent;
    10. Examine the accounting party, when it seems necessary, upon oath, touching the accounting party's receipts and disbursements;
    11. Continue the settlement, from time to time, on cause shown by affidavit;
    12. Charge such party with all such sums as the party has received or might have received by using due diligence; and credit such party with such disbursements as the party supports by lawful vouchers, and with a reasonable compensation for the party's services;
    13. Report the account to the next court having probate jurisdiction for confirmation or rejection;
    14. Record the settlement when it is finally adjusted by the court;
    15. Serve every party, resident in the clerk's county, that is interested in the account, or the agent or attorney of such as reside elsewhere, with five (5) days' notice of taking such account, and take no account of any administration until such notice has been given;
    16. Record all refunding bonds lodged with the clerk by any personal representative, taken from distributees, and file and preserve the originals in the clerk's office; and
    17. Perform all the duties required of the clerk in the administration of insolvent estates of deceased persons.
  3. In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

Code 1858, § 4069 (deriv. Acts 1789, ch. 23, § 3; 1813, ch. 120, § 4; 1831, ch. 29, § 2; 1837-1838, ch. 125, §§ 1-4; 1851-1852, ch. 180, § 1; 1851-1852, ch. 215, § 2); Shan., § 5884; Code 1932, § 10084; modified; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-604; modified; Acts 1983, ch. 55, § 2; 1985, ch. 140, § 4; 1993, ch. 449, § 1; 2003, ch. 310, §§ 2, 6-10; 2004, ch. 463, § 1; 2005, ch. 24, §§ 1, 2; 2005, ch. 115, § 1; 2006, ch. 528, § 1; 2011, ch. 417, § 1; 2012, ch. 654, § 1; 2014, ch. 756, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2003, ch. 310, § 8, effective July 21, 2003, provided that subdivision (a)(1) shall not apply in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census. Acts 2005, ch. 24, § 1 deleted Acts 2003, ch. 310, § 8, effective April 5, 2005.

Acts 2003, ch. 310, § 9, effective July 21, 2003, provided, in part, that, in any county with a population of not less that twelve thousand eight hundred (12,800) nor more than twelve thousand nine hundred (12,900) according to the 2000 federal census or any subsequent federal census, the clerk who is serving as clerk of the court with probate jurisdiction on June 30, 2003, shall continue to serve as the clerk of the court with probate jurisdiction after the effective date of this act.

Acts 2005, ch. 24, § 1 provided that Acts 2003, ch. 310, § 8 is amended by deleting that section in its entirety.

Acts 2005, ch. 24, § 3 provided that, for the purpose of transferring records, files and other documents relating to probate matters in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census of population or any subsequent federal census, from the office of the county court clerk to the office of the circuit court clerk, the act shall take effect April 5, 2005. For all other purposes, including the transfer of duties and authority over probate matters to the circuit court clerk, the act shall take effect on July 1, 2005.

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 756 took effect on April 21, 2014.

Amendments. The 2011 amendment, in (a)(2)(A), deleted “not less than 62,900 nor more than 63,000” from the population table.

The 2012 amendment, in (a)(2)(A), deleted “not less than 105,800 nor more than 105,900” from the population table.

The 2014 amendment added (a)(4).

Effective Dates. Acts 2011, ch. 417, § 5. July 1, 2011.

Acts 2012, ch. 654, § 2. April 4, 2012.

Acts 2014, ch. 756, § 3. April 21, 2014. [See the Compiler's Notes.]

Cross-References. Chancery court to exercise probate jurisdiction, §§ 16-16-201, 16-16-202.

Decedents' estates, account of representatives, taking and stating, title 30, ch. 2, part 6.

Fees for accounting made in decedents' estates, § 30-2-611.

Nonresident executor or administrator, service upon clerk, § 30-1-104.

Notice of accounting in decedents' estates given by, § 30-2-603.

Probate jurisdiction, §§ 16-16-201, 16-16-202, 30-1-102, 30-1-301, 32-4-101, 32-5-101.

Wills, original to remain in office, § 32-2-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 663, 725, 836-839, 845, 1143.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

Attorney General Opinions. Probate functions now performed by the Unicoi County court clerk under 1981 Tenn. Priv. Acts Ch. 98 must be transferred to the clerk of the Unicoi County General Sessions Court or the clerk and master no later than July 1, 2006, OAG 03-143 (11/07/03).

Legislation regarding Carter county probate clerks, OAG 06-088 (5/15/06).

Collateral References.

Power of court, in absence of statute, to require corporate surety on fiduciary bond in probate proceeding. 82 A.L.R.2d 926.

18-6-107. Duties as to guardians.

  1. The county clerk has the duty to enter in particular books, to be provided and kept for that purpose only, every guardian's first account of the guardian's ward's estate, received into the guardian's hands and possession, and each annual account of profits and disbursements afterwards exhibited by such guardian.
  2. Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

    not less than  not more than

    12,800 12,900

    27,100 27,200

    43,100 43,200

    62,300 62,400

    182,000 182,100

  3. In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

Code 1858, § 4070 (deriv. Acts 1762, ch. 5, § 9); Shan., § 5885; Code 1932, § 10085; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-605; Acts 2003, ch. 310, §§ 3, 6-10; 2005, ch. 24, §§ 1, 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2003, ch. 310, § 8, effective July 21, 2003, provided that subdivision (a)(1) shall not apply in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census. Acts 2005, ch. 24, § 1 deleted Acts 2003, ch. 310, § 8, effective April 5, 2005.

Acts 2003, ch. 310, § 9, effective July 21, 2003, provided, in part, that, in any county with a population of not less that twelve thousand eight hundred (12,800) nor more than twelve thousand nine hundred (12,900) according to the 2000 federal census or any subsequent federal census, the clerk who is serving as clerk of the court with probate jurisdiction on June 30, 2003, shall continue to serve as the clerk of the court with probate jurisdiction after the effective date of this act.

Acts 2005, ch. 24, § 1 provided that Acts 2003, ch. 310, § 8 is amended by deleting that section in its entirety.

Acts 2005, ch. 24, § 3 provided that, for the purpose of transferring records, files and other documents relating to probate matters in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census of population or any subsequent federal census, from the office of the county court clerk to the office of the circuit court clerk, the act shall take effect April 5, 2005. For all other purposes, including the transfer of duties and authority over probate matters to the circuit court clerk, the act shall take effect on July 1, 2005.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

18-6-108. Probate of instruments.

  1. The county clerk has the duty to take the probate or acknowledgment of all deeds and other instruments that are entitled to registration by law, and to certify the same for registration, and to demand and receive the state tax thereon, as specified in title 67, chapter 4, part 4.
  2. Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

    not less than  not more than

    12,800 12,900

    27,100 27,200

    43,100 43,200

    62,300 62,400

    182,000 182,100

  3. In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

Code 1858, § 4072 (deriv. Acts 1833, ch. 92, § 15; 1835-1836, ch. 53, § 6; 1837-1838, ch. 150, § 1); Shan., § 5887; Code 1932, § 10086; T.C.A. (orig. ed.), § 18-606; Acts 2003, ch. 310, §§ 4, 6-10; 2005, ch. 24, §§ 1, 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2003, ch. 310, § 8, effective July 21, 2003, provided that subdivision (a)(1) shall not apply in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census. Acts 2005, ch. 24, § 1 deleted Acts 2003, ch. 310, § 8, effective April 5, 2005.

Acts 2003, ch. 310, § 9, effective July 21, 2003, provided, in part, that, in any county with a population of not less that twelve thousand eight hundred (12,800) nor more than twelve thousand nine hundred (12,900) according to the 2000 federal census or any subsequent federal census, the clerk who is serving as clerk of the court with probate jurisdiction on June 30, 2003, shall continue to serve as the clerk of the court with probate jurisdiction after the effective date of this act.

Acts 2005, ch. 24, § 1 provided that Acts 2003, ch. 310, § 8 is amended by deleting that section in its entirety.

Acts 2005, ch. 24, § 3 provided that, for the purpose of transferring records, files and other documents relating to probate matters in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census of population or any subsequent federal census, from the office of the county court clerk to the office of the circuit court clerk, the act shall take effect April 5, 2005. For all other purposes, including the transfer of duties and authority over probate matters to the circuit court clerk, the act shall take effect on July 1, 2005.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

18-6-109. Duties as to marriages.

  1. The county clerk has the following duties as to marriages:
    1. To endorse on or append to the marriage license the form of the return; and
    2. To register, in a well-bound book, the names of the parties, and the date of the issuance of a marriage license, and to copy immediately, under or opposite thereto, the return of the proper functionary who solemnized the rites of matrimony, with the date thereof, and file and retain the license and return thereof in such clerk's office or other suitable facility.
  2. The records described in subdivision (a)(2) are public records.
  3. As used in this section, “suitable facility” means a facility that stores local government records securely against theft and natural disasters.

Code 1858, § 4073 (deriv. Acts 1815, ch. 47, § 1; 1837-1838, ch. 118, § 2); Shan., § 5888; Code 1932, § 10087; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-607; Acts 1993, ch. 418, § 1; 2019, ch. 79, §§ 1, 2.

Amendments. The 2019 amendment  added “or other suitable facility” at the end of (a)(2); and added (c).

Effective Dates. Acts 2019, ch. 79, § 4. April 3, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

Attorney General Opinions. Authority of county clerks to examine qualifications of persons who solemnize marriages, OAG 97-139 (10/09/97).

Collateral References. Clerks of Courts 69.

18-6-110. Record of appointments and settlements.

  1. The county clerk has the duty to record in well-bound books all letters testamentary and of administration, all guardian appointments and all settlements made by the clerk with guardians and personal representatives.
  2. Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:

    not less than  not more than

    12,800 12,900

    27,100 27,200

    43,100 43,200

    62,300 62,400

    182,000 182,100

  3. In counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census, the circuit court clerk, who also serves as the general sessions court clerk, shall serve as the clerk of the court with probate jurisdiction in any such counties.

Code 1858, § 4074 (deriv. Acts 1837-1838, ch. 125, § 7); Shan., § 5889; Code 1932, § 10088; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-608; Acts 2003, ch. 310, §§ 5, 6-10; 2005 ch. 24, §§ 1, 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2003, ch. 310, § 8, effective July 21, 2003, provided that subdivision (a)(1) shall not apply in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census or any subsequent federal census. Acts 2005, ch. 24, § 1 deleted Acts 2003, ch. 310, § 8, effective April 5, 2005.

Acts 2003, ch. 310, § 9, effective July 21, 2003, provided, in part, that, in any county with a population of not less that twelve thousand eight hundred (12,800) nor more than twelve thousand nine hundred (12,900) according to the 2000 federal census or any subsequent federal census, the clerk who is serving as clerk of the court with probate jurisdiction on June 30, 2003, shall continue to serve as the clerk of the court with probate jurisdiction after the effective date of this act.

Acts 2005, ch. 24, § 1 provided that Acts 2003, ch. 310, § 8 is amended by deleting that section in its entirety.

Acts 2005, ch. 24, § 3 provided that, for the purpose of transferring records, files and other documents relating to probate matters in counties having a population of not less than thirty-nine thousand fifty (39,050) nor more than thirty-nine thousand one hundred fifty (39,150), according to the 2000 federal census of population or any subsequent federal census, from the office of the county court clerk to the office of the circuit court clerk, the act shall take effect April 5, 2005. For all other purposes, including the transfer of duties and authority over probate matters to the circuit court clerk, the act shall take effect on July 1, 2005.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 587.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

NOTES TO DECISIONS

1. Failure to Record Letters Testamentary.

The failure of the clerk to record letters testamentary, after probate of the will and grant and issuance of the letters testamentary, will not vitiate the authority of the executor. Wright v. Mongle, 78 Tenn. 38, 1882 Tenn. LEXIS 138 (1882).

Collateral References. Clerks of Courts 69.

18-6-111. Other duties.

The county clerk is required to perform such other duties as are, or may be, by law required of the county clerk.

Code 1858, § 4075; Shan., § 5890; Code 1932, § 10091; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-609.

18-6-112. Incompetency of clerk.

  1. Whenever the county clerk is incompetent, because of interest or relationship, to do or perform any official act required by law to be done by the county clerk, it shall be lawful and is the duty of the county mayor or appropriate judge to do and perform the act.
  2. When the clerk is incompetent to take and state any account, the account shall be taken and stated by a special commissioner, to be appointed by the chancellor as provided by law.

Acts 1871, ch. 42, § 1; Shan., § 5891; Code 1932, § 10092; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 18-610; modified; Acts 2003, ch. 90, §  2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Appointment of special commissioner by chancellor, § 21-1-104.

County mayor acting for clerk, § 5-6-114.

Incompetency of clerk, § 5-6-115.

18-6-113. Depositions.

The county clerks are authorized and empowered to take depositions in any legal proceeding to the same extent and after the same manner as notaries public, and in taking such depositions the clerks shall attest the depositions under their official seals, and for such services shall be entitled to the same compensation as notaries public.

Acts 1923, ch. 96, § 1; Shan. Supp., § 5891a1; mod. Code 1932, § 10089; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 18-611.

Cross-References. Persons before whom depositions to be taken, § 24-9-135.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 11.

Law Reviews.

The Tennessee Court System — The County Court, 8 Mem. St. U.L. Rev. 419.

Collateral References. 14 C.J.S. Clerks of Courts §§ 33-36, 90.

Clerks of Courts 45.

18-6-114. Oaths and affidavits.

    1. The county clerks are authorized and empowered to take affidavits and administer oaths for general purposes to the same extent as judges of the courts of general sessions and notaries public.
    2. They shall attest the affidavits and oaths under their official seals or the seals of their respective courts.
    1. As compensation for their services in taking any such affidavit or oath and so attesting the affidavit or oath, they shall be entitled to receive the sum of twenty-five cents (25¢), to be paid by the party whose affidavit or oath is so taken.
    2. This section shall not affect the fees provided by law for such clerks incident to their duties in their respective courts.

Acts 1923, ch. 96, § 2; Shan. Supp., § 5891a2; mod. Code 1932, § 10090; impl. am. Acts 1978, ch. 934, §§ 22, 36; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 18-612.

Compiler's Notes. The language “respective courts” in this section apparently refers to the judicial authority formerly residing in the monthly county courts.

Collateral References. 14 C.J.S. Clerks of Courts § 38.

Affidavits 5.

18-6-115. Vacancies.

If the office of the county clerk becomes vacant due to death, resignation or removal, the duties of the county clerk shall be temporarily discharged by the chief deputy, or deputy designated as temporary successor by the county clerk in writing, until a successor county clerk is elected or appointed and qualified according to law.

Acts 1993, ch. 315, § 19.