Bateman v. Smith
| Decision Date | 04 May 1946 |
| Citation | 194 S.W.2d 336,183 Tenn. 541 |
| Parties | BATEMAN v. SMITH. |
| Court | Tennessee Supreme Court |
Error to Weakley County Court; Cayce Pentecost, Judge.
Habeas Corpus action by Landow Bateman against Mrs. Johnnie Smith to regain custody of a child alleged to be in custody of its maternal grandmother. From action of trial court overruling demurrer to petition and the decree entered thereon defendant appeals in error.
Decree reversed and petition dismissed.
Homer W. Bradberry, of Dresden, for plaintiff in error (petitioner below).
Luke Hannings and George C. Rowlett, both of Martin, for defendant in error.
This action was filed by the petitioner, Landow Bateman, in the county court of Weakley County, seeking a writ of habeas corpus for the purpose of regaining the custody of a small child alleged to be in the custody of its maternal grandmother. The petition was demurred to by the defendant Mrs. Johnnie Smith, which was overruled; and from the action of the court in overruling the demurrer and the decree entered thereon, the defendant has appealed in error here.
It is insisted by counsel for the defendant upon this appeal that by section 9676, subsection (4), of the Code it is provided that the petition for the writ of habeas corpus shall state that it is the first application for such writ. This section of the Code reads as follows:
'The petition shall state:
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'(4) That it is the first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do.'
It is also insisted by counsel for the defendant that by the same section, subsection (3), it is provided that the petition shall show that the legality of the restraint has not already been adjudged upon a prior proceeding of the same character.
The word 'shall' is equivalent to the word 'must.' Home Telegraph Co. v. Nashville, 118 Tenn. 1, 101 S.W. 770, 11 Ann.Cas. 824; State ex rel. v. Burrow, 119 Tenn. 376, 104 S.W. 526, 14 Ann.Cas. 809.
In 25 Am.Jur., Habeas Corpus, § 10, it is said:
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Hickman v. State
...are mandatory and must be followed scrupulously." Archer v. State, 851 S.W.2d 157, 165 (Tenn.1993) (citing Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336, 337 (1946)). Although there is no habeas corpus statute of limitations, the grounds upon which habeas corpus relief will be granted are......
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Pendergrass v. Myers, No. M2004-00463-CCA-R3-HC (TN 3/1/2005)
...the habeas corpus statutes are mandatory and must be followed scrupulously." Archer, 851 S.W.2d at 165 (citing Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). In view of the petitioner's failure to comply with the mandatory provisions of Tennessee Code Annotated section 2......
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McGowan v. State
...corpus statutes are mandatory and must be followed scrupulously." Archer v. State, 851 S.W.2d at 165 (citing Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). The petitioner may not use a writ of errorcoram nobis to effectually amend or seek reconsideration of a habeas corp......
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Tucker v. Holland, No. M2003-02837-CCA-R3-HC (TN 2/22/2005)
...corpus statutes are mandatory and must be followed scrupulously." Archer v. State, 851 S.W.2d at 165 (citing Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336, 337 (1946)). In view of the Petitioner's failure to comply with the mandatory provisions of section 29-21-107, summary dismissal of t......