Hunter v. Sheppard

• Decision Date: 17 July 1948
• Parties: HUNTER v. SHEPPARD et al.
• Court: Tennessee Supreme Court

213 S.W.2d 19

187 Tenn. 99

HUNTER v. SHEPPARD et al.

Supreme Court of Tennessee.

July 17, 1948

Appeal from Chancery Court, Sumner County; S. A. Marable Chancellor.

Suit by Charlie Hunter against William L. Sheppard and others to enjoin the enforcement of a judgment at law. From a decree for defendant, the complainant appeals.

Affirmed.

Luther Creasy, of Gallatin, for appellant.

Harold Howser, and Thos. Boyers, both of Gallatin, for appellees.

GAILOR Justice.

The bill in this cause was filed by the complainant Hunter against the defendants Sheppard, et al. to enjoin the enforcement of a judgment at law secured by Sheppard against Hunter in an action in negligence arising out of the operation of an automobile. The bill assails the judgment at law on two grounds, viz.; (1) that in the suit at law the Court had no jurisdiction of the person of the defendant Hunter because there had been no service of process upon him. (2) That, after default judgment for failure of defendant to appear, an order awarding an inquiry to fix the amount of damages had been entered in which there was a fatal defect or variance in that it was alleged in the order that damages were to be assessed 'for an assault and battery,' when the declaration sought damages for the negligent operation of an automobile.

The appellant has abandoned ground one of the attack upon the judgment and by stipulation has agreed that the certified copy of the summons showing service had upon all the defendants in the law suit, was true and correct and that the defendant in the present case, Sheppard, should not be compelled to introduce other evidence than the certified copy of the summons to show the correctness of the return thereon.

From what we have stated, it results that the appeal here presents only the correctness or the Chancellor's holding that the words 'for an assault and battery' in the order awarding an inquiry to fix the amount of damages, were harmless surplusage and could be elided without affecting the validity of the final judgment.

The appellant has made numerous assignments of error but they are for the most part insufficient under our rule 14, (173 Tenn 874) since they fail to state 'Wherein the action complained of is erroneous, and how it prejudiced the rights of the appellant.'

Appellant states in his brief that all the assignments of error boil down to two propositions, and in the first proposition he says: 'It is the contention of complainant-appellant that a void judgment may be directly attacked by a bill filed in the Chancery Court for that purpose. The original bill filed in this cause was filed for that purpose and complainant-appellant thereby directly attacked the validity of said judgment rendered in the case, and the Chancellor should have sustained the bill in this case and perpetually enjoined the defendants from enforcing the collecting of said judgment. We respectfully insist that the action of the Chancellor to the contrary constitutes error. In support of this contention of complainant-appellant, we cite and rely upon the authorities that follow:'

He follows this with a long list of authorities where Chancery Court has set aside void judgments. However, he begs the preliminary and essential question by failing to give authority to prove that the final (not interlocutory) judgment before us here is void. We think the appeal and the questions thereby presented resolves itself into a consideration of appellant's proposition two, which is as follows: 'Complainant-appellant earnestly insists that the judgment in the Circuit Court case which is complained of in the original bill in the case at bar in utterly void and of no effect, the cause of action alleged in the declaration filed in said case being based upon alleged acts of negligence averred against the defendants therein, and the default judgment rendered in said case could not have been based upon any other cause of action. However, the Circuit Court rendered a default judgment against the defendants therein for damages 'for assault and battery'. This is the main proposition complainant-appellant relies upon for a reversal of this cause. The judgment in the Circuit Court went beyond the scope of the pleadings in that case and the Court's action in so doing rendered said judgment void, the same being without pleadings to support it.'

The pertinent part of the order under attack is as follows: 'On motion of the plaintiff the defendants were solemnly called to come into Court and make defense to the plaintiff's declaration for damages for assault and battery, but, notwithstanding this call, the defendants came not. It is therefore considered by the Court that the plaintiff have and recover of the defendants his damages and costs; but the amount of said damages not clearly appearing to the Court, it is considered and adjudged that the plaintiff have a writ of inquiry with respect to his said damages, which writ of inquiry shall be executed at the succeeding term of the Court.'

This was an interlocutory judgment. 'The judgment is interlocutory where a writ of inquiry must be issued thereon, or some other act done involving a future inquiry to determine the amount of recovery.' 49 C.J.S., Judgments, § 216, p. 381.

The final judgment in law case was:

'In this cause the plaintiff moved the Court that the writ of inquiry heretofore granted be executed and that the plaintiff

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