F. D. C. Corp. v. Burgess
Citation | 225 Tenn. 546,3 Pack 546,473 S.W.2d 186 |
Parties | , 225 Tenn. 546 F.D.C. CORPORATION v. Earl C. BURGESS. |
Decision Date | 15 November 1971 |
Court | Supreme Court of Tennessee |
Kirk C. Waite, Jr., Steltemeier & Westbrook, Nashville, for complainant-appellant.
Walter E. Nesbit, Columbia, for defendant-appellee.
On February 11, 1971, the complainant, F.D.C. Corporation filed its complaint against Earl C. Burgess in the Chancery Court at Columbia by which it sought a new hearing on the merits of a suit between the same parties and in which a final decree had been pronounced and entered on June 24, 1970. It prayed and was granted an injunction inhibiting further proceedings in the cause.
The complainant alleged that on August 20, 1969, it had filed its original bill in the Chancery Court by which it had sought a deficiency judgment against the defendant, Earl C. Burgess, on a secured promissory note and that the defendant had answered the bill and filed a cross-bill by which he had averred a violation of the Uniform Commercial Code in the sale of a 1968 model White Sleeper Cab, claiming damages of $6,977.20. The complainant further charged that the suit had been heard on two days, April 29 and June 24, 1970, and on the latter date the court had dismissed the complainant's bill, had sustained the defendant's cross-bill, and had entered judgment on the cross-bill and against the complainant for $6,977.20 and the costs of the suit.
The following paragraph appears in the complaint:
Thereafter the complainant averred that it was entitled to perfect its appeal, that it had been prevented from doing so through no fault of its own, that it had not been guilty of laches or negligence, but that the Chancellor had not been available for some weeks before the expiration of the time allowed for the filing of the bill of exceptions. Attached to the complaint as an exhibit is a transcript of the previous hearing. The defendant, Earl C. Burgess, filed a plea of Res adjudicata which the Chancellor sustained, dismissing the complaint.
Since the suit was finally determined by a method not involving a review or determination of facts the appeal was to this Court. Section 16--408, Tennessee Code Annotated.
It will be noticed that this suit--an original action to compel a new trial of the former suit--was begun after the Rules of Civil Procedure had become effective and since Rule 7 abolishes pleas and provides for the defense of civil actions by answer the plea will be considered as the defendant's answer--an answer by which the defendant asserted the single defense of Res adjudicata.
Chancellor Gibson in Section 336, Gibson's Suits in Chancery (5th Edition), said:
But the object of the suit before us is to obtain a rehearing of the former suit and is a direct attack upon the decree in that suit. The parties are the same in both actions but the subject matter is altogether different. It follows that the defense of Res adjudicata is not available to the defendant Burgess and inasmuch as it is the only defense which the defendant asserted we must adjudge the answer to be insufficient.
We consider, however, that under the facts as they appear in the record and as counsel related them in their oral arguments we should not dispose of the appeal without a discussion of the applicable law. This will be of guidance to the parties on remand of the suit to the Chancery Court.
The contention of F.D.C. Corporation is that it was deprived of its bill of exceptions, without which its appeal would have been in vain, because the Chancellor before whom the case was tried was outside the State of Tennessee...
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...court itself, when a party has, without fault on his part, been deprived of effective appellate review. See, F.D.C. Corp. v. Burgess, 225 Tenn. 546, 473 S.W.2d 186 (1971). The filing of a separate or independent suit in equity for relief from a judgment is recognized as a permissible remedy......
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...court itself, when a party has, without fault on his part, been deprived of effective appellate review. See, F. D. C. Corp. v. Burgess, 225 Tenn. 546, 473 S.W.2d 186 (1971). The filing of a separate or independent suit in equity for relief from a judgment is recognized as a permissible reme......