Churchwell v. Callens

• Decision Date: 19 June 1952
• Citation: 252 S.W.2d 131,36 Tenn.App. 119
• Parties: CHURCHWELL et al. v. CALLENS et al.
• Court: Tennessee Court of Appeals

Page 131

252 S.W.2d 131

36 Tenn.App. 119

CHURCHWELL et al. v. CALLENS et al.

Court of Appeals of Tennessee, Western Section, at Jackson.

June 19, 1952 Certiorari Denied by Supreme Court Oct. 10, 1952.

P. M. Harbert, of Savannah, for appellant.

Ross & Ross, of Savannah, for appellee.

SWEPSTON, Judge.

This appeal is by T. L. Callens from a decree of the Chancellor adjudging him guilty of contempt of court for wilful failure to obey a mandatory injunction, for which he was assessed a fine of $10.

On July 1, 1950 E. K. Churchwell and others filed their bill in the Chancery Court alleging that respondent, Callens, had constructed a fence across a road, of which complainants were entitled to the use and that said obstruction would cause them irreparable damage, that an emergency exists by reason of facts alleged in the bill and they, therefore, prayed for an injunction restraining respondents, Callens and his wife, from continuing said obstruction and a mandatory injunction compelling respondents to remove said fence and all other obstructions and that same 'be immediately issued and served.'

Before filing, the bill was presented ex parte and without notice to the County Judge of Hardin County at Savannah, wherein the lands of both parties are situate and where the bill was filed, who issued a fiat to the Chancery Clerk for the issuance of said injunction as prayed in the bill, upon bond in the sum of $500. The bond was given and the Clerk issued the injunction immediately as prayed in the bill and commanded respondents, etc. 'to immediately remove said fence from across said road.'

The writ was served on respondent the same day about nightfall, which was Saturday. Next morning Mr. Callens went to Savannah to consult his counsel, but was instructed to come back Monday morning, which he did. Counsel immediately called the solicitor for complainants in an effort to obtain an immediate hearing before the Chancellor at Paris for modification or dissolution of the injunction. Upon said solicitor's refusal of a hearing except on the usual five days notice, said notice was given for a hearing at Paris on July 8.

On July 5 complainants filed a petition for attachment of the body of respondent for contempt and said attachment was served upon Mr. Callens requiring him to appear at Jackson on July 8 under bond of $1000, which was given.

Respondents filed their answer to the bill on July 4 and Callens filed his answer to the contempt petition on July 8 and on the same date by agreement of the parties (R. 60) the motion to dissolve or modify the injunction was heard and overruled; the Court then held that it appeared from the answer of defendants that they had not obeyed the injunction and they were ordered to comply with same by noon of July 10, but upon insistence of complainants for immediate removal of the fence one of the complainants was allowed to remove same instanter; the hearing on the contempt petition was then continued over to the regular term in Hardin County and was so heard on October 25. On that date the matter was heard on the petition and answer, the affidavits filed on behalf of complainants and the oral proof in open court. The order on said hearing recites that defendants failed to comply with the writ of injunction from July 1 to July 8, 'and the court finds that the answer of defendant showed no sufficient excuse for not complying with said writ' and the fine of $10 was assessed.

There are nine assignments of error with nine parts to the third.

It will not be necessary or appropriate to discuss every question in detail, but at the threshold of the appeal is the attack on the constitutionality of the statute by virtue of which the County Judge issued the fiat for the injunction.

If the attack is successful, the fiat was utterly void for want of jurisdiction of the judge awarding it and disobedience of the injunction is not a contempt. Howell v. Thompson, 130 Tenn. 311, 170 S.W. 253; 12 Am.Jur. 408, Sec. 26; 17 C.J.S., Contempt, § 14, p. 19; Gibson's Suits In Chancery, Sec. 814, note 43.

A void judgment is no judgment at all and binds nobody.

It is therefore, necessary to decide the constitutional question.

The attack is made on Chapter 329, Private Acts of 1937 as being in violation of Section 17, Article 2 of the State Constitution in that it is said 'to embrace more than one subject, or the subject is not embraced in the title.'

The caption of this act is as follows:

'An Act to be entitled An Act to amend an Act entitled An Act to create the office of County Judge for Hardin County, and to define the powers and prescribe the qualifications and duties of the County Judge, being Chapter 425 of the Acts of 1907, of the Fifty-fifth General Assembly of the State of Tennessee, passed on the 11th day of April, 1907.'

Section 1 of this amendatory act is that Chapter 425 of the Public Acts of '1909' be amended by adding thereto, after Section 4:

'That the County Judge of said County of Hardin shall have authority, jurisdiction, and power to grant all extraordinary writs of injunction and attachments the same as the Circuit Judges and the Chancellors of the State now have, and he shall also exercise this power and authority in the same manner as the Chancellors and Circuit Judges'.

It appears that Chapter 425 of the Acts of 1909 is an Act to incorporate the town of Centerville in Hickman County, but that Chapter 425 of the Acts of 1907 is the Act of which the title and subject are referred to in the caption of the amendatory act here attacked.

The basis of counsel's insistence is then that we should disregard the copious information in the caption of the amendatory act, which is strictly accurate and disregard the rational relation of the substance of Section 1 of the body of the amendatory act to the substance of Chapter 425 of the Acts of 1907, simply because the body of the amendatory act in Section 1 gives the year as 1909.

This is obviously merely a clerical error due no doubt to the fact that the Private Acts of 1907 and 1909 appear in the same volume.

It is settled in this State that the title of an Act may be looked to in aid of the construction of the body, Southern Ry. Co. v. Rowland, 152 Tenn. 243, 246, 276 S.W. 638, and to effectuate the legislative intent words may be modified, altered or supplied. Hudgins v. Nashville Bridge Co., 172 Tenn. 580, 113 S.W.2d 738; Scales v. State, 181 Tenn. 440, 181 S.W.2d 621.

We hold the Act is constitutional.

Next it is insisted that this statute did not authorize and empower the County Judge of Hardin County to order the extraordinary process of a mandatory injunction 'where property rights are largely adjudged without a hearing', and it is insisted that defendant was tried by one Court for the violation of an order made in another Court, which cannot be done.

As to the last statement, it is settled that the Court against which the contempt is committed is the one having jurisdiction to try it. Chaffin v. Robinson, 187 Tenn. 125, 213 S.W.2d 32.

Yet we think counsel misconceives the import of this statute and the character in which the Judge acted.

In granting the fiat he was not acting as the County Court of Hardin County but as the Judge thereof specially empowered to grant extraordinary writs of injunction and attachments the same as Circuit Judges and Chancellors of the state now have.

We dealt with the principles involved here in the unreported case of State ex rel. Hospital Board v. Mrs. Vernon Sneed, decided Oct. 18, 1950 (no cert. applied for).

The State filed a bill to enjoin Mrs. Sneed from operating a hospital and nursing home in alleged violation of law.

A fiat for the issuance of the injunction was obtained from Chancellor Shriver at Nashville and the papers were then transferred to the Clerk and Master of the Shelby Chancery Court where the suit was assigned to Part II of said Court, Chancellor Bejach presiding.

The injunction was issued and served on defendant. Shortly afterwards complainant obtained from Chancellor Shriver a fiat on a petition for attachment of Mrs. Sneed for alleged violation of the injunction and the papers were transmitted to the Clerk in Shelby County.

Chancellor Bejach held the fiat of Chancellor Shriver for the attachment was void for lack of jurisdiction of the case pending in Shelby County.

We held it was not void for the reasons here quoted:

'In the brief counsel relies upon Code Section 9946 which provides:

"The judges and chancellors shall have interchangeable and concurrent jurisdiction to grant injunctions, attachments, and all other extraordinary process, issuable out of, and returnable to, any of the circuit or chancery courts of this state.'

'In view of the holding of the Chancellor that Mrs. Sneed had not in fact violated the injunctive order and because of the rule that there is no appeal from an order discharging her as an alleged contemnor as held in Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273, there can be no relief to appellant in this court even if the Chancellor was in error in holding the fiat of Chancellor Shriver void. Ordinarily an appellate court will not pass upon a moot question, but where the question is one of public interest and a decision would settle an important question of practice affecting public administrative bodies, the court will pass upon it. In fact we are requested to do so here for that reason.

'McCanless, Com'r, v. Klein, 182 Tenn. 631, 188 S.W.2d 745;

'State ex rel. v. Bush, 141 Tenn. 229, 208 S.W. 607.

'It is conceded by all parties and so stated by the Chancellor that the above quoted code section authorized Chancellor Shriver to issue the fiat for the injunction on the original bill before the bill was filed in Shelby County.

'But Chancellor Bejach held that after the cause was filed and docketed in his Court, no other judge or chancellor had jurisdiction to act. Of course, it must be understood that his court was...