La Font v. Robison

• Decision Date: 06 June 1958
• Parties: , 204 Tenn. 1 Mildred LA FONT and B. M. Walden Respondents, v. Connie ROBISON, Petitioner.
• Court: Tennessee Supreme Court

Page 266

315 S.W.2d 266

8 McCanless 1, 204 Tenn. 1

Mildred LA FONT and B. M. Walden Respondents, v. Connie ROBISON, Petitioner.

Supreme Court of Tennessee.

June 6, 1958.

Van Dyke & Dunlap, Paris, Owens & McLain, Memphis, for petitioner.

Peeler & Hollis, Camden, Sam C. Nailling, Union City, for B. M. Walden.

Heathcock, Elam & Cloys, Union City, for Mildred H. LaFont, respondents.

TOMLINSON, Justice.

Mrs. LaFont has filed a petition to rehear. Therein she points out that in her assignments of error, brief and argument in the Court of Appeals she assigned as error (1) the failure of the Trial Court to give in charge certain requests she made and (2) the giving in charge of an erroneous instruction. The Court of Appeals pretermitted these particular assignments of error of Mrs. LaFont because it sustained her assignment of error to the effect that the Court erred in not directing a verdict in her favor.

The insistence made by the petition to rehear is that when this Court reversed the action of the Court of Appeals and reinstated the judgment against Mrs. LaFont 'it was thereupon incumbent upon' this Court to consider the above mentioned assignments of error made by Mrs. LaFont in the Court of Appeals.

Mrs. LaFont filed no petition for certiorari. Nor did she assign errors in this Court upon such alleged erroneous action or non-action of the Court of Appeals with respect to these assignments of error which the Court of Appeals pretermitted.

By Chapter 100 of the Acts of 1925, Code Section 27-819, parties were given the right to seek a review of a case finally decided in the Court of Appeals upon a sworn petition for certiorari accompanied by assignments of error, etc.

Thereafter the question made in Mrs. LaFont's petition was presented this Court in Independent Life Insurance Co. v. Hunter, 166 Tenn. 498, 506, 63 S.W.2d 668, 671. The ruling of this Court was as follows:

'Errors were also assigned in the Court of Appeals with respect to the charge and with respect to other matters occurring on the trial below. The Court of Appeals, however, considered only the defense of absolute privilege and dismissed the suit on that ground alone. That court did not notice any other point made by the Independent Life Insurance Company and that company has filed no petition for certiorari to review the action of the Court of Appeals.

'If there is one thing well settled in our practice, it is that no error of the Court of Appeals, either of commission or omission, can be reviewed by this court except upon petition for certiorari. The erroneous pretermission of material questions by that court must be brought up in the same way that the erroneous disposition of such points is brought up to permit a review by this court. This follows from the language of the statutes which created the Court of Civil Appeals and the Court of Appeals.'

See also Rose v. Brown, 176...