Baker v. Penecost

• Decision Date: 10 June 1937
• Citation: 106 S.W.2d 220
• Parties: BAKER et al. v. PENECOST et al.
• Court: Tennessee Supreme Court

106 S.W.2d 220

BAKER et al. v. PENECOST et al.

Supreme Court of Tennessee.

June 10, 1937.

Appeal in error from Circuit Court, Gibson County; W. W. Bond, Judge.

Petition for certiorari and supersedeas by Mrs. H. J. Baker and another against W. T. Penecost and others. From a judgment dismissing the petition, plaintiffs appeal in error.

Affirmed.

Taylor, Adams & Freeman, of Trenton, for plaintiffs in error.

Curry Simpson, of Trenton, for defendants in error.

GREEN, Chief Justice.

This is an appeal in error from a judgment of the trial court dismissing a petition for certiorari and supersedeas, filed by Mrs. H. J. Baker and Mrs. Mary F. Cason. The petition alleged that Mrs. Cason was justly indebted to Mrs. Baker for $400 borrowed money, and as evidence of said indebtedness Mrs. Cason executed her promissory note for that sum and also as security for said note executed a chattel mortgage on a Ford automobile particularly described. That this chattel mortgage was duly recorded on January 20, 1936, in the register's office of Gibson county.

The petition further alleged that O'Neal Commission Company recovered a judgment against Mrs. Cason for $163.79 before a justice of the peace in Gibson county on January 27, 1936, and execution issued on this judgment and was placed in the hands of defendant Penecost, a Gibson county constable. That notwithstanding O'Neal Commission Company and Penecost both had actual and constructive knowledge of the chattel mortgage upon said automobile to secure the debt to Mrs. Baker, Penecost levied on said automobile as the property of Mrs. Cason.

The petition prayed that the writs of certiorari and supersedeas issue, that the levy of the execution be quashed, and that petitioners have judgment for costs and damages.

The motion to dismiss the petition for certiorari and supersedeas was based upon several grounds. The judgment, in general terms, dismissed the petition without indication as to which of said grounds it was rested upon. We think the trial judge was right and that only one challenge of the motion to dismiss need be noticed.

Plaintiffs in error undertake to sustain the petition upon the theory that it is a petition for the writ of certiorari in lieu of the writ of audita querela. Section 8990 of the Code provides:

"Certiorari lies: (1) On suggestion of diminution; (2) where no appeal is given; (3) as a substitute for appeal; (4) instead of audita querela; (5) instead of writ of error."

The "writ of audita querela" is thus defined in 3 Blackstone, 305:

"An audita querela is where a defendant against whom a judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter in discharge which has happened since the judgment; as if the plaintiff has given him a general release, or if the defendant has paid the debt to the plaintiff without entering satisfaction on the record."

It is further rather well settled by the common-law authorities that "the person suing out the writ must be one injured in the former proceeding and a defendant therein." 6 C.J. 856.

The writ of certiorari has been employed in lieu of audita querela in a number of reported decisions in this state upon which the plaintiffs in error rely. Linebaugh v. Rinker, 7 Tenn.(Peck) 362; Jones v. Williams, 32 Tenn.(2 Swan) 105; Denny v. White, 42 Tenn.(2 Cold.) 283, 88 Am. Dec. 596; Ezell v. Holloway, 61 Tenn.(2 Baxt.) 15; McGrew v. Reasons, 71 Tenn. (3 Lea) 485; Thompson v. McMillan, 89 Tenn. 110, 14 S.W. 439. In all these cases the writ of certiorari was awarded to a defendant in the original proceedings.

In the very terms by which audita querela is defined, Mrs. Baker is excluded from the right to demand that writ in this case, since she was no party to the proceedings in which the judgment against Mrs. Cason was rendered. The writ of audita querela itself not being available to her, it follows that she is not entitled to certiorari in lieu of audita querela.

Likewise, we think the terms by which the use of audita querela is defined exclude Mrs. Cason from invoking that writ in this case.

The object of the petition for certiorari was to quash the execution, not to review the judgment against Mrs. Cason. It is not obvious that she can be injured by the levy made herein. O'Neal Commission Company and Penecost proceeded on the idea that the conveyance by Mrs. Cason to Mrs. Baker was fraudulent and passed no title to the latter. If this be true, Mrs. Cason cannot complain of the levy, judgment having been rendered against her and the property being subject to execution. If the conveyance was bona fide and Mrs. Cason had only an equity in the property, the levy of execution upon a judgment at law would not have reached her equity.

But aside from this, the real matter in controversy between the interested parties hereto was whether the conveyance of the automobile was in good faith. That is not a matter that has arisen since the judgment, and therefore not a proper matter to be litigated upon audita querela or certiorari in the nature of audita querela.

The...