White v. Henry

• Decision Date: 02 August 1955
• Citation: 285 S.W.2d 353,199 Tenn. 219,3 McCanless 219
• Parties: , 199 Tenn. 219 Ralph M. WHITE, et al. v. Keith M. HENRY, et al.
• Court: Tennessee Supreme Court

Page 353

285 S.W.2d 353

3 McCanless 219, 199 Tenn. 219

Ralph M. WHITE, et al. v.Keith M. HENRY, et al.

Supreme Court of Tennessee.

Aug. 2, 1955.

Rehearing Denied Oct. 7, 1955.

Keith M. Henry and Wallace F. Burroughs, Knoxville, for appellants.

Wayne Parkey, Knoxville, for appellees.

W. E. Badgett, Knoxville, for City of Knoxville.

TOMLINSON, Justice.

The question for decision is whether the Chancellor erred in sustaining the bill of Ralph M. White and others for review of a decree for error of law apparent, such decree being entered in another suit between the same parties, that decree being in favor of Keith M. Henry and others, appellants here, and defendants to the bill of review.

Litigation between the parties with reference to the subject matter involved has reached this Court twice heretofore.Refer to 194 Tenn. 192, 250 S.W.2d 70, and195 Tenn. 383, 259 S.W.2d 862.The present case involves three separate subsequent suits between the same parties instituted in the Chancery Court of Knox County, its causes No. 35830, 35893and36189, respectively.

The contest stems from an effort of two men named White, appellees here, and complainants to the bill of review, to operate an automobile garage and repair shop in a certain zoned district of Knoxville.Owners of nearby residences, though not necessarily in the same zone, such owners being appellants here, have consistently resisted the operation of such garage on the ground that such operation violates the zoning law of Knoxville.It was while the appeal of the Whites was pending in the cause referred to in 195 Tenn. 383, 259 S.W.2d 862, supra, that the City of Knoxville enacted its OrdinanceNo. 2185 purporting to amend its zoning law.The effect of that amendment, so the Whites insist, is to permit the operation of such a garage within the boundaries of the zoning district involved.

Appellants, residence owners, filed their bill in cause No. 35830, the first of the three subsequent suits mentioned, attacking the validity of Ordinance 2185, supra.The defendants White and the City of Knoxville had not answered that bill when there expired the time fixed for such answer.A pro confesso was promptly entered followed within a few days by a decree adjudging this ordinance invalid.

Within about a week after the entry of the decree, supra, White filed his bill in cause No. 35893, which is the second of the three subsequent suits mentioned above.The bill in this second suit had the aspects of (1)a bill for review of the decree entered in the first suit, No. 35830, for errors of law apparent, and (2) for fraud in the procurement of the order pro confesso.

Henry and his associates, defendants in this second cause, they being the complainants in the first cause, were of the opinion that it is not permissible to seek in one bill both of these characters of relief.Upon their motion that the Whites be required to elect whether they would treat their bill in this second suit as a bill to impeach for fraud or as a bill for review, the Whites elected to treat it as a bill to impeach for fraud.

Thereupon, the Court filed his memo. opinion holding that 'the sole question presented to the Court for determination is: Was the pro confesso properly taken and entered or was it so taken as to constitute a fraud in law'.It was adjudged that the order pro confesso was legally taken; hence, that the bill of the Whites in the second suit, No. 35893, be dismissed.

While that second suit was pending, the Whites commenced the third suit, cause No. 36189, supra.Their bill sought to have reviewed and reversed the decree entered in the first suit, No. 35830, supra, an the ground that the bill in this first suit 'could not be sustained upon the everments of said original bill'.

The Chancellor sustained the bill in this third suit, holding that the decree in the first suit, 'No. 35830 cannot be sustained upon the antecedent pleadings consisting of the original bill and the exhibits thereto'.The only exhibit to the bill in 35830 is the Master Zoning Ordinance(No. 123) of Knoxville.That decree in this third suit held invalid and set aside the order pro confesso and final decree in the first suit, adjudged amending ordinance No. 2185 to have been legally enacted, and ordered the dismissal of Henry's bill filed in the first suit.The appeal now being considered is from that decree in this third suit.

Though the City of Knoxville was a partydefendant to the first suit it was not originally a partycomplainant in the third suit, wherein it was sought to review the decree entered in the first suit.So, the appellants made the point that the third suit could not be maintained.The subsequent action of the Chancellor in allowing Knoxville to be made a partydefendant in this third suit is assigned as error.

The legislature has evidenced an intention that liberality be practiced in permitting amendments, including the addition of new parties, plaintiffs and defendants.The Courts have consistently acted in accord.Read Code Sections 8622and8713.The granting of the application to make this amendment seems to clearly fall within the spirit and letter of these code sections, and in accord with the practice of the Courts.Therefore, this insistence is rejected.

The bill in the first cause is by reference made a part of the bill in the third cause.The bill in the first cause plainly reflects the interest of the Whites in the question of whether OrdinanceNo. 2185 is valid.The legal operation of their garage depends thereupon.Appellants' insistent, therefore, that the bill in the third cause does not show wherein the Whites are aggrieved by the decree in the first cause holding this ordinance invalid is not well taken.

In the third cause, No. 36189, a motion was made by Henry to dismiss White's bill for review.Eight grounds were assigned.One of these was that the second suit, cause No. 35893, involving identical parties, facts and subject matters, is pending.The failure of the Chancellor to sustain this ground of the motion is assigned as error.

Upon the insistence of Henry, the Chancellor required White to elect as to whether he would proceed with this second suit, No. 35893, as a bill to review the decree in the first suit or as a bill for fraud in the procurement of the order pro confesso in that first suit.White thereupon elected to proceed in the second suit on the theory of fraud in the procurement of the order pro confesso.And the Chancellor considered it only on that basis.The third suit, No. 36189, being the one under consideration here, was for a different purpose, to wit, a bill to review the decree in the first suit for errors apparent.Hence, entirely different issues were involved in the two suits.Caldwell v. Huffstutter, 173 Tenn. 225, 230-231, 116[199 Tenn. 226] S.W.2d 1017.In reality, this was exactly in accordance with the insistence of appellants that the relief permitted by a bill for review could not be sought in the same bill which sought relief by reason of fraud in the procurement of that decree.

The argument in appellants' brief is that appellees were put to their election as to whether they would proceed by way of bill of review for error apparent or by way of a bill to impeach for fraud, and, having elected to proceed in the second suit to impeach for fraud, that such election is irrevocable, thereby preventing appellees from thereafter prosecuting the third suit by way of a bill of review for errors of law apparent.

Appellants, in making such insistence, have, we think, overlooked the fact that in order for such an election of remedies to be irrevocable, the remedies must be inconsistent, Grizzard v. Fite, 137 Tenn. 103, 107, 191 S.W. 969, L.R.A.1917D, 652, and have overlooked the fact that the two remedies involved here are not inconsistent.This is because there may be error of law apparent in the decree, without regard to whether the preceding order pro confesso was legally entered.

By the same token, there must be rejected appellants' insistence that the decree rendered in the second suit, cause No. 35893, is a bar by way of res adjudicata to the relief sought by the bill in the third suit, cause No. 36189.The issue and decree in the second suit, cause No. 35893, was limited to the question of whether the pro confesso was legally entered in the first suit, cause No. 35830.The relief sought in the third suit, cause No. 36189, and being the one under consideration on this appeal, was limited to the procuring of a review of the decree entered in the first suit for alleged error of law apparent.The issues being different, and not in conflict, the Chancellor did not err in overruling appellants' plea of res adjudicata.Caldwell v. Huffstutter, supra.

It is necessary at this point to hold that the Chancellor erred in the third suit, cause No. 36189, in adjudging void the pro confesso entered in the first suit, cause No. 35830.It was specifically adjudged in the second suit, cause No. 35893, that this order pro confesso was validly entered.That was the only issue involved in that suit.That decree was final.There was no appeal from it.

The next question for determination is whether the Chancellor in this third suit, cause No. 36189, erred in holding that the decree in the first suit, cause No. 35830, (1)'cannot be sustained upon the antecedent pleadings consisting of the original bill and the exhibits thereto', and (2) in adjudging Ordinance 2185 to have been legally enacted, and (3) in ordering the dismissal of appellants' bill filed as complainants in the first suit, cause No. 35830, seeking, and therein procuring, an adjudication that this amending ordinance is invalid.

In addition to the original bill and its exhibit OrdinanceNo. 123, being the Master Zoning Ordinance of Knoxville, the Chancellor, in determining in the first suit, cause No. 35830, whether amending OrdinanceNo. 2185 was a void enactment, was...