McCanless v. State ex rel. Hamm

• Decision Date: 10 June 1944
• Parties: McCANLESS, Commissioner of Finance and Taxation, v. STATE ex rel. HAMM.
• Court: Tennessee Supreme Court

181 S.W.2d 154

181 Tenn. 308

McCANLESS, Commissioner of Finance and Taxation, v. STATE ex rel. HAMM.

Supreme Court of Tennessee.

June 10, 1944

Appeal in Error from Circuit Court, Davidson County; E. F. Langford Judge.

Mandamus suit by the State of Tennessee, on the relation of J. C Hamm, against George F. McCanless, Commissioner of Finance and Taxation, to compel the Commissioner to issue to relator a license to do business as a liquor dealer in Nashville. From a judgment in favor of the relator, the Commissioner appeals in error.

Judgment reversed, and suit dismissed.

Thomas H. Malone, III, and C. W. Tuley, Asst Attys. Gen., for plaintiff in error.

Norman Farrell and Tom Ed Murray, both of Nashville, for defendant in error.

GREEN Chief Justice.

This is a mandamus suit brought by the relator to compel the Commissioner of Finance and Taxation to issue to relator a license to do business as a liquor dealer in Nashville. From a judgment in favor of the relator the Commissioner has appealed in error to this Court.

The propriety of the judgment of the trial court is to be tested by the evidence heard in the case. The relator insists that there is no motion for a new trial nor a bill of exceptions to which this Court can look and accordingly moves for a judgment here affirming the judgment below. We first consider this motion.

The judgment of the circuit court making the writ of mandamus peremptory was entered on April 1, 1944, and that order recited that the Commissioner excepted and prayed an appeal 'which appeal the court was pleased to grant without the necessity of a bond, the defendant, acting in his official capacity as Commissioner of Finance and Taxation, execution of an appeal bond or otherwise giving security for costs being excused.'

On April 4, 1944, a motion for a new trial was entered in the case and that motion was overruled on April 7, 1944. In the order overruling the motion for a new trial it was recited that the Commissioner excepted and prayed an appeal, 'which appeal is hereby granted, without the necessity of executing an appeal bond, etc., etc.'

The motion to affirm is rested upon the proposition that the grant of the appeal to the Commissioner in the order of April 1, no cost bond being required, removed this case from the circuit court and deprived that court of jurisdiction to make any further orders herein. A ruling to this effect was made in Suggs v. Suggs' Executors, 1 Tenn. 2, and this ruling was repeated in Nichols v. Colvill, 1 Tenn. 81. Later the rule so stated was qualified by subsequent decisions and it was held that the appeal only became final at the end of the term. Staggs v. State, 22 Tenn. 372; Davis v. Jones, 40 Tenn. 603. And that an appeal might be set aside and an amendment allowed during the term. Decatur Bank v. Berry, 22 Tenn. 590; Hall v. Bewley, 30 Tenn. 106. See also State v. Dalton, 109 Tenn. 544, 72 S.W. 456, and Citizens' Bank & Trust Co. v. Bayles, 153 Tenn. 40, 281 S.W. 932.

So the law remained until Chapter 65 of the Acts of 1885, carried into the Code at § 9047. Under this statute the judgment of the court becomes final after thirty days if the term should continue for so long and during the thirty days the court has the power to set aside its judgment and the grant of an appeal, although the appeal has been perfected by the execution of an appeal bond or otherwise. This is recognized in Memphis & Charleston R. Co. v. Johnson, 84 Tenn. 387.

Chancellor Gibson states the rule thus:

'But at all times during the term, if within thirty days after its entry, the decree is under the control of the court; and may, during that period, be modified or even vacated; or the order granting an appeal, during the same period, be vacated or modified.' Chambliss' Gibson's Suits in Chancery, § 1262.

It is said for the relator, if it be admitted that the court does not lose jurisdiction until after the expiration of the thirty days, nevertheless the order granting the appeal must be set aside before any additional proceedings can be had in the trial court. If, however, the court retains jurisdiction for thirty days and may within such period set aside the grant of an appeal, it must follow that during such time the court has jurisdiction to suspend an order granting an appeal and a motion for a new trial, seasonably made, by its own force, suspends a judgment or order previously entered. Louisville & N. Railroad v. Ray, 124 Tenn. 16, 134 S.W. 858, Ann.Cas.1912D, 910; Dunn v. State, 127 Tenn. 267, 154 S.W. 969. At least it suspends the judgment so as to justify the court in entertaining the motion for a new trial, Feldman v. Clark, 153 Tenn. 373, 284 S.W. 353, and there is no find judgment from which an appeal in error would lie while the motion for a new trial is pending.

So we are of opinion that the entry of the motion for a new trial on April 4 suspended the judgment granting the appeal on April 1, and the court retaining jurisdiction properly entertained this motion and upon overruling it had authority to grant an appeal and time within which to perfect a bill of exceptions. The entry of a motion for a new trial herein may be treated as an abandonment of the appeal first granted, as in Newton Finance Corp. v. Conner, 161 Tenn. 441, 33 S.W.2d 95, 72 A.L.R. 1286.

The relator seeks the writ of mandamus on the ground that the Commissioner acted arbitrarily in refusing to grant him the liquor dealer's license sought. Chapter 49 of the Pub.Acts of 1939 authorizes the employment of the writ under such circumstances.

The relator is a brother-in-law of a liquor dealer named Hallum whose license was revoked and the brother-in-law is seeking a license to operate the same business at the same place.

For the purpose of this case it may be conceded that the relator had complied with all the statutory prerequisites to obtaining a license and that the action of the Commissioner was arbitrary, unless justified by a rule that he had previously promulgated. The Act of 1939 regulating the sale of intoxicating liquors authorizes the Commissioner to make proper rules for the enforcement of the statute. We do not understand relator to challenge the authority of the Commissioner generally in this respect, but it is the particular rule...