Howell v. Thompson

• Decision Date: 24 October 1914
• Citation: 170 S.W. 253,130 Tenn. 311
• Parties: HOWELL ET AL. v. THOMPSON. JAMES v. THOMPSON.
• Court: Tennessee Supreme Court

170 S.W. 253

130 Tenn. 311

HOWELL ET AL. v. THOMPSON.

JAMES v. THOMPSON.

Supreme Court of Tennessee.

October 24, 1914

Appeal from Chancery Court, Hamilton County; T. M. McConnell, Judge.

Bills by J. C. Howell and others and by C. E. James against Frank M. Thompson. Temporary restraining orders were issued, and defendant petitions the Supreme Court for supersedeas. Petition dismissed.

Littleton Littleton & Littleton, of Chattanooga, for plaintiffs.

J. H Early, W. B. Swaney, and W. G. M. Thomas, all of Chattanooga for defendant.

GREEN J.

These bills were filed by a number of property owners, whose houses were occupied by so-called soft drink dealers, and by the proprietors of several soft drink establishments, to enjoin Frank M. Thompson, the Attorney General of Tennessee, from proceeding against them under chapter 2 of the Acts of 1913 Second Extra Session, known as the "Nuisance Act."

A temporary restraining order was issued by the chancellor, and after notice and hearing an interlocutory injunction was issued, by which the defendant was enjoined from proceeding against complainants, or any of them under the Nuisance Act, until further orders of the court, except in that court and these causes, and restraining defendant from proceeding with certain litigation already instituted by him in the circuit court of Hamilton county to enforce the provisions of the Nuisance Act against certain of these defendants.

It was averred in the bills that the said act had no application to the business operated by the complainants--they claiming that the Nuisance Act was intended to apply alone to the sale of intoxicating liquors, which they said they did not dispense--and it was further averred that, if said act did apply to them, it was unconstitutional.

A petition for supersedeas of this interlocutory injunction is filed by the defendant in this court.

There has been considerable discussion at the bar and in briefs as to the nature of the writ of supersedeas, as to whether it is merely an ancillary writ, or whether it may be issued as a primary writ, originally remedial, aside from the act of 1851.

We have a number of early cases sustaining the contention of defendant that the common-law writ of supersedeas may be employed as original primary process, and is not necessarily ancillary to a certiorari, appeal, or writ of error. There cases are Edmondson v. King, 1 Overt. 426; Linebaugh v. Rinker, 1 Peck, 362; Kearney v. Jackson, 1 Yerg. 294; Claiborne v. Crockett, 1 Meigs, 607. Perhaps there are other cases to the same effect.

In all these cases, however, the writ was directed to a final decree of the lower court. In other jurisdictions at this date the writ may only be employed with reference to final decrees. 37 Cyc. 598. In Tennessee, however, by the provisions of our Code, the writ of supersedeas may be employed to suspend the execution of interlocutory decrees in certain cases. By Acts 1851, chapter 181, carried into Shannon's Code at sections 5737, 5738, 6348, it is provided:

Sec. 5737. "The Supreme Court in term, or either of the judges in vacation, may grant writs of supersedeas to an interlocutory order or decree, or execution issued thereon, as in case of final decrees, and may require the party applying to give bond, with good security, payable to the opposite party, conditioned to pay the amount of the interlocutory order or decree if so required, upon final hearing, and, further, to pay all such costs and damages as the opposite party may sustain."

Sec. 5738. "The clerk of the Supreme Court, upon issuing supersedeas in such case, shall transmit to the chancery court a copy of the petition and supersedeas, to be filed in the cause, and to constitute a part of the record."

Sec. 6348. "They may also grant supersedeas to the execution of an interlocutory decree of an inferior court, in the cases provided for in sections 5737 and 5738."

In the case of Keesee v. Civil District Board of Education et al., 6 Cold. 127, and Williams v. Boughner, 6 Cold. 486, this court granted the writ of supersedeas as to interlocutory injunctions therein issued. It was supposed such authority was conferred upon the court by the statutes just quoted. No question appears to have been made in either of these cases as to the power of the court to act in this manner with respect to the particular orders superseded. Such a power on the part of the court appears to have been conceded. The power was assumed, and was not questioned. Therefore the character of interlocutory orders which might be properly stayed under the statutory provisions was not considered by the court.

The same court, however, in McMinnville & Manchester R. R. Co. et al. v. Huggins et al., 7 Cold. 217, undertook a full discussion of the statutes and their scope. The rules laid down by Judge Andrews in this case have been approved and followed by the court ever since. Among other things, it was said:

"Our statutes recognize the writ of supersedeas as an established remedy, but give no general definition of the writ, nor description of its office. But the only cases in which a supersedeas is provided for, or mentioned in the Code, except in sections 3933 and 4513, are cases in which it is given as ancillary to the writ of error and the writ of certiorari, and in which its office is merely to stay proceedings under the judgment or decree while the cause is pending in the appellate court; and the proper office and function of the writ of supersedeas is, undoubtedly, merely to stay proceedings. Bouvier's Law Dict."

"But the supersedeas provided for in sections 3933 and 4513 does not operate as an appeal or writ of error, to bring the cause into this court. The cause remains in the inferior court; and the supersedeas, when granted, merely suspends the operation of the decree until a final hearing, but does not reverse it. The distinction between reversing a decree and merely superseding it, must be kept in mind. If the decree is one which is of a nature to be actively enforced against the party, then it may be superseded; proceedings under it may be stayed. But such a decree is suspended, not reversed, by the supersedeas; and if the decree or order be purely negative or prohibitory in its character, it may be, in a proper proceeding, reversed; but it is not a proper subject for the operation of a supersedeas; for there can be no proceeding under it to be stayed."

"An injunction, in our practice, is a prohibitory writ, and its office is to restrain, and not to compel performance. It does not authorize any act to be done; and there can be no proceeding under it capable of being stayed by a supersedeas." McMinnville & Manchester R. R. Co. et al. v. Huggins et al., supra.

In Mabry v. Ross, 1 Heisk. 770, the same statutes were considered upon an application to supersede the dissolution of an injunction. The application was disallowed and the court said:

"The writ of supersedeas is technically a writ to suspend the execution of a judgment. There must be something in the course of execution, to suspend which the writ is awarded--something in fieri, but not yet finished. Its common-law function is to stop the execution of a judgment at law, or a decree in equity, whether interlocutory or final, and whether for money or other property, or whether the said execution be for the performance of any other act under the mandate of the court. There must be some affirmative act to be done, to prevent the doing of which the writ is awarded. Its issuance imports that something is about to be done which will be illegal and injurious to the party complaining, and the doing of that act is to be suspended until its justice and legality can be inquired of by the court. * * *

But, delicate and dangerous as is this jurisdiction in a court of equity, and injurious as its exercise may sometimes be, can this court, under the authority conferred by the statute, award the writ of supersedeas, to thwart and defeat an interlocutory order granting a temporary injunction? Why not? Because the injunction is not an active, but a passive thing. It is of itself a supersedeas. There is nothing in fieri to check or stop. The writ has its peculiar and appropriate office, and in such case it would be powerless, and injurious and hurtful as the effect of such injunction may be, the parties must be left to litigate their rights to a final hearing, and to look to their remedies by appeal or writ of error."

The same view with reference to the office of this statutory supersedeas respecting interlocutory decrees has been expressed by the court in all of the following cases: Cone v. Paute, 12 Heisk. 506; Allen v. Nelson, 7 Baxt. 343; Raht v. Mining Co., 2 Shan. Cas. 8; Payne v. Johnson, 2 Shan. Cas. 542; Foley v. Leath, 3 Shan. Cas. 354; Watkins v. Bank, 3 Shan. Cas. 564; Park v. Meek, 1 Lea, 78; Baird v. Turnpike Co., 1 Lea, 394; Johnston v. Hanner, 2 Lea, 8; Roberson v. Roberson, 3 Lea, 50; Blake v. Dodge, 8 Lea, 465; Woods v. Batey, 15 Lea, 733; Downing v. Coal Co., 93 Tenn. 221, 24 S.W. 122; Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118.

In the last expression of this court upon the subject, Troughber v. Akin, 109 Tenn. 451, 472, 73 S.W. 118, 123, it was said:

"That interlocutory orders, however, may be so erroneously passed and drawn as really to contain elements proper only in a final decree or judgment, and when so drawn, and when, in addition, they are of a kind capable of active enforcement, they may be reviewed upon application for supersedeas, and * * * may

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