Mayor, Etc., of Nashville v. Patton

• Decision Date: 16 December 1911
• Parties: MAYOR AND CITY COUNCIL OF NASHVILLE v. PATTON et ux.
• Court: Tennessee Supreme Court

143 S.W. 1131

MAYOR AND CITY COUNCIL OF NASHVILLE v. PATTON et ux.

Supreme Court of Tennessee.

December 16, 1911.

Certiorari from Court of Civil Appeals.

Action by F. E. Patton and wife against the Mayor and City Council of Nashville. From a judgment of the Court of Civil Appeals, affirming a judgment for plaintiffs, defendants bring certiorari. Writ disallowed.

A. G. Ewing, Jr., City Atty., and F. M. Garard, Asst. City Atty., for petitioner. Rutherford & Rutherford, for respondent.

NEIL, J.

This case was determined against the plaintiff in error by the Court of Civil Appeals at its present term. Thereupon a petition for the writ of certiorari was filed in this court.

In order that we may state fully our views of the question of practice suggested by this petition, we set it out in full as follows:

"Petition for Certiorari.

"To the Honorable the Chief Justice and the Associate Justices of the Supreme Court of Tennessee:

"Your petitioner, the mayor and city council of Nashville, respectfully represents and shows:

"I. Statement of the Case.

"For a full and detailed statement of the case, we herewith file our printed brief prepared for the Court of Civil Appeals at the October term, 1911, which we make a part of our petition; statement of the case appearing on pages 1 and 2.

"II. Pleadings.

"A statement of the pleadings appears in detail in our brief filed in the Court of Civil Appeals, referred to heretofore, on pages thereof 2 and 3, which we make a part of this petition.

"III. Statement of the Evidence.

"We refer your honors to detailed statement of the evidence, as set out in our brief heretofore mentioned, which we make a part of this petition. This appears on pages 3 to 9, inclusive.

"IV. Assignment of Errors.

"For assignment of errors, we adopt the assignment made in the Court of Civil Appeals, and make the same a part of this petition. These assignments appear on pages 9 to 33.

"V. Brief and Argument.

"For brief and argument, we refer your honors to our said brief, heretofore filed, pages 34 to 95, adopting the same as a part of this petition.

"Conclusion.

"Your petitioner believes that the judgment of the Court of Civil Appeals is erroneous, and that this honorable court should require by certiorari the removal of said case to it for review and determination in conformity with the Acts of the General Assembly of the state of Tennessee in such cases made and provided.

"The Court of Civil Appeals erred in overruling the several and various assignments made by plaintiff in error.

"There is no evidence to support the verdict. The plaintiff, Mrs. Jessie V. Patton, with full knowledge, assumed the risk, and the court erred in declining to charge as requested, and in the conduct of the trial, as assigned in the brief, which is made a part of this petition, and the verdict is excessive, showing total disregard of the evidence and its capriciousness.

"Wherefore, your petitioner prays that the writ of certiorari and supersedeas may be issued out of and under the seal of this honorable court, directed to the Court of Civil Appeals of Tennessee, commanding said court to certify and send to this court, on a certain day to be therein designated, the full and complete record in said case as filed in said Court of Civil Appeals, entitled `Mayor and City Council of Nashville, Plaintiff in Error, v. F. E. Patton and Wife, Defendants in Error, No. ____, Davidson Law Docket,' together with all the proceedings of said court therein, to the end that this cause may be reviewed and determined by this court, as provided for in the Acts of the General Assembly of the state of Tennessee, being chapter 82 of the Acts of 1907, and that your petitioner have such other and further relief in the premises as this honorable court may deem proper and in conformity with said act, and especially that said judgment of said Court of Civil Appeals on said case may be reversed by this honorable court, and that the judgment of the circuit court of Davidson county, Tenn., herein be reversed, and the case dismissed, and that, pending the action of the court on this petition, judgment and execution of the Court of Civil Appeals be superseded.

                 "Mayor and City Council of Nashville
                    "By A. G. Ewing, Jr., and F. M. Garard
                       Attys. for Petitioner
                

"State of Tennessee, Davidson County:

"A. G. Ewing, Jr., makes oath and says that he is the attorney for the foregoing mayor and city council of Nashville, Tennessee, in the case named in the foregoing petition, and that the allegations in said petition are true to the best of his knowledge

                and belief.        A. G. Ewing, Jr
                

"Sworn and subscribed to before me this the 7th day of November, 1911.

                          "J. W. Dashell, Notary Public."
                

In the answer filed to the petition it is insisted:

"The petition in this case should be dismissed, for the reason that it does not comply with chapter 82, § 8, Acts of 1907, relating to petitions for certiorari. That portion of said act here relied upon reads as follows:

"`Such certiorari shall not be issued after a lapse of ninety days from the final decree or judgment from the Court of Civil Appeals; and it shall not be awarded or issued from the Supreme Court, except upon petition duly sworn to, stating the substance of the case to be decided, accompanied by assignments of error, or errors, and brief in support thereof.'

"The present petition was filed within 90 days, and was duly sworn to, but the substance of the case to be decided is not stated at all. There are no assignments of error set out in the petition, and there is no brief in support thereof.

"It is true that said petition refers to the original assignments of error in the Court of Civil Appeals for a full and detailed statement of the case, and the original brief filed in the Court of Civil Appeals is also referred to in said petition; but there are no assignments of error in said petition, except those errors assigned in the Court of Civil Appeals, and they are simply referred to under ...