Mitchell v. Porter
| Decision Date | 18 July 1942 |
| Citation | 173 S.W.2d 443 |
| Parties | MITCHELL v. PORTER. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Shelby County; John E. Swepston, Chancellor.
Suit by George Mitchell, etc., against Dr. A. R. Porter to have a judgment at law set aside and declared void and complainant granted a new trial upon the law and facts, and to enjoin defendant from taking any steps under the judgment. From a decree in favor of complainant, the defendant appeals.
Complaint dismissed.
J. E. Madden and William J. Ling, both of Memphis, for complainant.
Abraham E. Horn and Thomas F. East, both of Memphis, for defendant.
The complainant, George Mitchell, doing business as Memphis Welding Company, filed this bill against Dr. A. R. Porter, seeking a new trial of a case at law wherein judgment had been rendered against him in favor of the defendant in the bill. Generally stated, the ground was that the judgment had been rendered at a time and under such circumstances as that through no fault of his own the complainant had been deprived of an opportunity to file a motion for a new trial and preserve the evidence heard in the case at law by bill of exceptions and hence he had been precluded from seeking relief either by a motion for a new trial or a review by this Court of the judgment rendered against him. The prayer was that the judgment at law "be set aside and declared null and void and that complainant be granted a new trial upon the law and facts in Your Honors Court", and that "the defendant, his agents, attorneys and privies be enjoined from taking any steps under said judgment", especially from in any way seeking to enforce said judgment by execution.
The cause was first heard upon the application for an injunction made after notice to the defendant. This hearing resulted in an order granting the injunction as prayed for and directing that the same should remain in full force and effect until modified or dissolved by the Chancellor.
Thereupon the defendant filed a demurrer coupled with an answer. The grounds of the demurrer were, (1) that "there was no equity in the face of the bill", and (2) "because the complainant has a plain, adequate and complete remedy at law by appeal to the Court of Appeals, by certiorari; or by writ of error coram nobis or by writ of error".
The answer denied generally that the case made by the bill prayed presented a situation wherein the Chancellor was authorized to grant the relief sought.
On January 21, 1941, an interlocutory order was entered reciting that the cause was heard on the demurrer to the bill and after due consideration the Chancellor "is of the opinion that the demurrer is not well taken and that the same should be overruled and that the complainant is entitled to the relief sought in the prayer of his original bill". After this premise it was decreed that the demurrer was overruled and that the judgment entered in the Circuit Court "is declared to be null and void in its entirety and that further proceedings in that cause by the defendant or any one else be perpetually enjoined". Following this, the order recited that "this cause now stands ready for trial in this Court upon original pleadings and record or copies of same which are filed in the Circuit Court of Shelby County, Tennessee, in case No. 91707 and shall be tried in this Court according to the forms of law".
The defendant excepted to this order and was given leave by the Court "to further rely upon his demurrer".
The case was then proceeded with as if a new trial of the action at law had been granted and the issues as made up in the law Court were then tried by the Chancellor upon oral evidence, the ultimate question being whether the complainant was liable upon an account for medical services rendered by the doctor to one of the complainant's employees. This trial resulted in a final decree reciting that a new trial of the action at law had theretofore been granted and that the cause had come on finally to be heard "upon oral proof without the intervention of a jury and upon the original proceedings as filed in the law Court, and upon the oral pleas of the complainant (defendant at law) and the Court after hearing the evidence and argument of counsel finds that the defendant, Dr. Arthur R. Porter Jr. (plaintiff at law) has wholly failed to establish his case and that judgment for the complainant, George Mitchell et al (defendants at law) should be entered in this Court". It was accordingly decreed "that the injunction heretofore issued against the judgment in the Circuit Court of Shelby County in the case of Porter v. Mitchell, T. D. 91707, is by the Court made final and perpetual" and that the defendant and his sureties should pay the cost of the cause.
Following this decree the defendant seasonably made his motion for a new trial and also what is denominated a "motion for a judgment non obstante veredicto", both of which were overruled, whereupon he prayed an appeal to this Court.
Apparently the Chancellor was of the opinion that his order granting the new trial was justified by the averments of the bill and the admissions of the answer, for no evidence seems to have been heard prior to the decision incorporated therein. This, however, is immaterial in the view we have of the case.
We deem it unnecessary to refer to the manner in which what we conceive to be the determinative question is presented. Unless the averments of the bill make a case for the intervention of a court of equity, the judgment at law described therein is conclusive and the chancery court had no jurisdiction of the subject matter, a question that can be raised at any time. Compare: King v. Vaughan, 16 Tenn. 59, 60, 8 Yerg. 59, 29 Am.Dec. 104; Petition of Southern, etc., Mfg. Co., 141 Tenn. 325, 210 S.W. 639.
In its last analysis, therefore, the contention in this court is that the Chancellor erred in holding "that the defendant in error (complainant)", to use the language of the assignments of error, "was prevented from having his complete and adequate remedy at law by surprise, accident or mistake."
A consideration of this question requires an examination of the history of the litigation as set forth in the bill. It seems the defendant Porter sued the complainant before a Justice of the Peace to recover the balance alleged to be due on account for professional services alleged to have been rendered on Causey at the special instance and request of the complainant during the period that Causey was in the employ of the complainant. Upon an appeal by the defendant from an adverse judgment, the case was heard before the Circuit Judge without a jury on April 29, 1938, the judge taking the case under advisement. It remained under advisement from April 29, 1938, until February 29, 1940, upon which date it was decided in favor of the defendant herein. Upon a motion for a new trial the complainant urged the failure of the judge to decide the case within the term within which it was submitted, and a new trial was granted on that ground. The case again came on for trial on July 8, 1940, a day of the May 1940 Term. Having been heard on oral testimony, it was again taken under advisement until September 14, 1940, when the Court rendered a judgment for the defendant herein, awarding him a recovery. After reciting the foregoing facts, the bill charges that September 14, 1940, "was Saturday and not a business day of the Court and the last day of the term" and that the judge of his own motion incorporated in the judgment rendered against the complainant an order "extending the time or term for a period of 30 days for all purposes", that neither he (complainant) nor his counsel were present at the time said order was entered "nor had any notice whatsoever that said order was about to be entered and could not have known of such order, in the exercise of reasonable diligence, and that counsel for complainant herein (defendant at law) acquired knowledge of said judgment on Monday, September 16th, 1940, through the medium of a notice in the Daily News which is a publication of Court business circulated among the lawyers at the local bar."
It is further averred that the complainant filed his motion for a new trial, which was overruled by the trial Court on September 27, 1940, "and he was granted an additional 30 days in which to perfect his appeal and tender his bill of exceptions, and on October 9, 1940, he tendered a narrative of the testimony to counsel for the defendant (plaintiff at law) with the request that he suggest any omissions, imperfections or misstatements, and that the latter made none; that complainant tendered the bill to the Court on or about October 17, 1940, and was advised on October 19, 1940, that "counsel for the plaintiff at law had objected to the settlement of the bill of exceptions on the ground that it was not tendered within the 30 days allotted in the order of September 14, 1940, it being the contention of the plaintiff at law that the Court, having entered the order of September 14th, 1940, upon the last day of the term was without power to further extend the term for the purpose of filing the bill of exceptions and accordingly an order was entered on October 28, 1940, denying the complainant the right to file his bill of exceptions or extend him further time to reconcile testimony". It is then charged that that part of the order of September 14, 1940, attempting to extend the term for the purpose of filing motion for a new trial and praying an appeal "is coram non judice and that the trial Judge was wholly without the power to extend the term for the purpose of praying an appeal or making a motion for a new trial".
After charging that "the hard and fast rule of common law being that the party seeking to obtain a new trial must file his motion at the term of the Court in which the case was...
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