Smith v. Williams

SCOTT, Special Judge,

concurring.

I concur in the result reached by my colleague writing for the majority. However, I feel constrained to add my interpretation of the rules to this muddled controversy.

Rule 39.02, Tennessee Rules of Civil Procedure, provides that “(i)ssues not demanded by trial by jury as provided in Rule 38 shall be tried by the court . . . .” As used in statutes, contracts, or the like, this word is generally imperative or mandatory, Black’s Law Dictionary, Fourth Edition, page 1541, citing numerous cases. In common parlance, the word shall is a word of command and one which…