Walldorf v. City of Chattanooga

• Decision Date: 09 March 1951
• Parties: WALLDORF et al. v. CITY OF CHATTANOOGA et al. 28 Beeler 86, 192 Tenn. 86, 237 S.W.2d 939
• Court: Tennessee Supreme Court

Page 939

237 S.W.2d 939

WALLDORF et al. v. CITY OF CHATTANOOGA et al.

28 Beeler 86, 192 Tenn. 86, 237 S.W.2d 939

Supreme Court of Tennessee.

March 9, 1951.

John A. Chambliss, Wm. G. Brown and Jere T. Tipton, all of Chattanooga, for appellants.

J. W. Anderson, W. A. Wilkerson, Chattanooga, for appellees.

BURNETT, Justice.

The appellants (complainants below) filed the original bill in this cause as 'citizens, taxpayers and registered, qualified voters of the City of Chattanooga, Tennessee', against the City of Chattanooga and the Chattanooga Housing Authority (the individuals constituting the governing bodies of these two corporations). 'The gist of the complaint set out in the bill was that by calling its action a 'resolution' instead of an 'ordinance' the City of Chattanooga circumvented the provisions of its charter which provides that no ordinance of the City shall go into effect for two weeks following its passage.' There is no allegation in the bill that the tax burden of complainant would or could be increased by reason of the passage of said resolution. The bill was answered under oath, as required to be by the bill, and the defendants in this answer denied that the complainants were entitled to any relief. They also specifically answered each averment of the bill and attached to their answer copies of the resolution and the contract made by the City with the Housing Authority. Section 9 of the answer averred that the bill does not show that complainants can or will suffer any injury which is not common to the body of citizens; that complainants show no special injury or interest; that no judicial question is presented; and that complainants are without right to maintain the suit.

Following the filing of this answer the complainants (appellants here) made a motion to strike Section 9 of the answer, under Code Section 10393. On the argument of this motion to strike this portion of the answer the Chancellor denied the motion and dismissed the bill on the grounds that since the complainants had no interest and had shown no special injury, that the bill could not be maintained in any event. The Chancellor in denying the motion in effect invited the complainants (appellants here) to amend their original bill so as to present a question that could or would require proof and could be considered on its merits when he said: 'I would be inclined to permit amendments by the original complainants to show a justiciable interest on the part of complainants in the controversy but such has not been proposed.'

The first proposition we have for consideration, and that primarily urged upon us in argument, is that the Chancellor erred in dismissing the bill on the complainants' motion to strike this Section 9 of the answer, above specifically set forth. We think that the Chancellor was correct in his action hereunder because this portion of the answer went to the heart of the bill. If the bill did not show that the complainants could or would suffer an injury which was not common to the body of the citizens then it was his duty to dismiss the bill. In order for complainants of the kind herein to maintain such a suit they must show some special injury or interest not common to the body of the citizens. Patton v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414; Skelton v. Barnett, 190 Tenn. 70, 227 S.W.2d 774; Porter v. City of Paris, 184 Tenn. 555, 201 S.W.2d 688; Jared v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1; England v. City of Knoxville, 183 Tenn. 666, 194 S.W.2d 489; Wright v. Nashville Gas & Heating Co., 183 Tenn. 594, 194 S.W.2d 459; State ex rel. Allen v. American Glanzstoff Corp., 167 Tenn. 597, 72 S.W.2d 775; Parks v. Margrave, 157 Tenn. 316, 7 S.W.2d 990; Reams v. Board of Mayor & Aldermen of McMinnville, 155 Tenn. 222, 223, 291 S.W. 1067; Richardson v. Young, 122 Tenn. 471, 125 S.W. 664; Pope v. Dykes, 116 Tenn. 230, 93 S.W. 85; Wilkins v. Chicago, St. L. & N. O. Railroad Co., 110 Tenn. 422, 75 S.W. 1026, and other cases that might be referred to.

The purpose of Code Section 10393 is for a complainant to 'test the sufficiency of the same or any part thereof, by motion to strike.' In other words, when a motion to strike a portion of the answer is made the obvious purpose of complainants in making such a motion to strike is to eliminate this portion of the answer from the pleadings because if the portion of the answer which it has sought to strike goes to the merits and heart of the controversy and could be sustained then it is up to the complainants to get this portion of the answer out otherwise their suit must fail. Obviously therefore, in view of the decisions of this Court above cited, the complainants felt that this portion of the answer, which they moved to strike, went to the very heart of the lawsuit and that if it remained in, the suit must be dismissed. This is true especially in view of the fact that the complainants did not allege any special or peculiar interest in the question not common to the body of the citizenship. Apparently, too, they knew or felt that they were unable to make any such allegation as they were in effect invited to make. This being true the Chancellor was clearly right in dismissing the bill if he was of the opinion that no special or peculiar interest in the complainants was alleged in the bill. It would have been mere idle ceremony for proof to be heard on a bill that did not allege a cause of action. Clearly the trial court may and it is his duty, when a situation of the kind is brought to his attention, to first in his discretion allow amendments if amendments are sought, and then if not to dismiss the bill when there are not sufficient allegations in the pleading to maintain the bill. Gibsons,...