Marsha L. Stewart and Timothy G. Stewart v. Ricky E. Cottrell, Kathy D. Cottrell and Heather B. Cottrell

The issue on appeal is whether the general sessions court may back date the dismissal of a civil warrant, the result of which deprives the plaintiff of the benefit of the Savings Statute to commence a new civil action. When it was discovered that the plaintiffs had requested a voluntary dismissal a year and a half earlier but the case had not been dismissed, the general sessions court entered a dismissal and backdated the effective date of the dismissal to the date the voluntary dismissal had been requested. When the plaintiffs perfected an appeal of the dismissal to the circuit court within ten days of the entry of the order of dismissal, the defendants moved to dismiss the case as being barred by the statute of limitations, relying on the nunc pro tunc application of the dismissal. The circuit court dismissed the case as time barred and this appeal followed. We have determined a dismissal of a civil warrant is not effective until an order of dismissal, signed by the judge, is entered by the clerk of the court. The plaintiffs timely appealed the dismissal of their general sessions warrant within ten days of the date of entry of the order by the clerk. Therefore, this action is not time barred.