Orrick v. Orrick

• Decision Date: 07 December 1956
• Citation: 200 Tenn. 696,296 S.W.2d 825,4 McCanless 696
• Parties: Gladys C. ORRICK v. Dexter K. ORRICK. 4 McCanless 696, 200 Tenn. 696, 296 S.W.2d 825
• Court: Tennessee Supreme Court

Page 825

296 S.W.2d 825

Gladys C. ORRICK v. Dexter K. ORRICK.

4 McCanless 696, 200 Tenn. 696, 296 S.W.2d 825

Supreme Court of Tennessee.

Dec. 7, 1956.

Ely & Ely, Knoxville, for plaintiff in error.

Harold B. Stone, Raymond L. Craig, Jr., James F. Martin, Knoxville, for defendant in error.

BURNETT, Justice.

This is an appeal by the sureties on a ne exeat bond from a decree sustaining a demurrer to the sureties' bill of review seeking to set aside a final judgment on the bond.

On February 9, 1953 the principal Dexter K. Orrick along with the appellant sureties Horner and Barnes entered into a bond which, insofar as here applicable, provides that these sureties,

'acknowledge ourselves indebted to the State of Tennessee for the sum of $500.00 but this obligation to be void if the said Dexter K. Orrick who has been arrested upon writ of ne exeat issued in the case of Gladys C. Parsons (Orrick) vs. Dexter K. Orrick in the Domestic Relations Court of Knox County, Tennessee at Knoxville shall not leave the said State without permission of said Court, and likewise shall not depart or leave the jurisdiction of said Court without permission of said Court.' (Emphasis ours.)

The bill of review was one for errors apparent on the face of the record. This bill was demurred to because, 'there are no errors of law in the decree or decrees complained of'. The question obviously is whether or not there are any errors of law apparent on the face of the record as set forth and pointed out in the bill of review. In determining these questions it is our duty to see if the decrees complained of and the pleadings upon which they are based contain any errors. In thus considering this case we 'cannot look into the evidence in the case in order' to find out whether or not the decree is erroneous in its statement of facts. We must take the facts to be as they are stated in the pleadings and on the face of the decree and some error of law must be pointed out. When the pleadings and the decree do not contain a statement of the material facts upon which the decree is made up then there can be no relief by a bill of review. Gibson's Suits in Chancery, Higgins and Crownover, 4th Edition, page 1030, Sec. 1232, et seq. Immediately following the section of Gibson, we have just referred to, are sections which point out what are errors of law and how these may be ascertained.

This is a divorce suit which was started in the Domestic Relations Court of Knox County in 1949. At the outset of the suit a ne exeat was asked for and issued but this had apparently been discharged at the request of the sureties. Various orders were entered decreeing that amounts of alimony and support for minor children be paid by the defendant. Apparently the complaining wife was apprehensive that her husband leave the State and on the order of the court the ne exeat bond above written which is before us in this case was executed by her former husband and the sureties herein appealing.

Insofar as the present suit is concerned it seems that the bill of review questions the motion for a conditional forfeiture made on this bond. On page 76 of the record this motion appears wherein the complaining party through her attorney moved the court to grant her a conditional forfeiture on the bond against these sureties 'for the reason that the said Dexter K. Orrick has left the jurisdiction of this Court or the State of Tennessee, in violation of the terms of this bond' * * *. There is affixed to this motion a certificate of the counsel for the defendant in error that he mailed a copy of the motion to these sureties, one of whom is a member of the Bar. This motion also gave notice when the motion would be made.

Following this motion there was an order entered by the court resetting the matter for a day in the future. This order says on its face that the extension of time when the motion was reset was made 'at the request of the attorney for the defendant and the said sureties, and with the agreement of counsel for the complainant * * *.'

Then on the day that they had agreed to hear the motion the court entered a conditional judgment against the defendant and his sureties by calling the defendant the sureties out. The conditional judgment was based on the fact that the defendant had failed 'to answer the State of Tennessee for the use and benefit of the complainant on his bond made pursuant to the orders of the Court under a writ of ne exeat republica, not to leave the jurisdiction of the court without its permission,' according to the terms of the bond, etc.

Then follows the final judgment under the terms of the bond against these sureties wherein it is shown that these sureties appeared and made defense and that judgment was rendered against them for failure to comply with the terms of the bond as above described.

From this order the sureties...