Wills v. Wills

• Decision Date: 12 April 1900
• Parties: WILLS v. WILLS.
• Court: Tennessee Supreme Court

58 S.W. 301

104 Tenn. 382

WILLS v. WILLS.

Supreme Court of Tennessee.

April 12, 1900

Appeal from circuit court, Gibson county; John R. Bond, Judge.

Petition by Henry M. Wills against Zela E. Wills. Petition dismissed and petitioner appeals. Affirmed.

Taylor & Biggs, for appellant.

Spl. Hill, for appellee.

WILKES J.

This is a petition for writ of error coram nobis in the circuit court of Gibson county. Its object is to annul, avoid, and vacate a judgment for divorce pronounced in that court in the case of Zela E. Wills against H. M. Wills at the September term 1899. By that judgment divorce was granted to the wife, as well as the custody of two minor children. The petition was filed within a year after the rendition of the decree complained of. Errors were assigned, and a motion to dismiss was made and sustained, upon the ground that a writ of error coram nobis would not lie to correct errors committed in a proceeding for divorce. This ruling of the learned trial judge was based upon the provisions of the statute (Shannon's Code, § 4890) in the following words: "In divorce cases an appeal shall be the only mode of revising errors,"-- and upon the further ground that the writ contradicted the record of the former suit and was insufficient in law. The principal allegations of the petition upon which the right to relief is based are that the petitioner and defendant thereto were married in 1894; that he was then, and had ever since been, a citizen of Indiana, and not a citizen or resident of Tennessee, though he had been in Tennessee for some two years teaching, but all the while intending to return to Indiana that he did return to that state in September, 1896, his wife returning with him, and there they continued to reside until April, 1899, when she left him, and came to Tennessee, and at once filed her bill for divorce. It was charged that the wife had not been a citizen of Tennessee two whole years before bringing the suit, but in fact for only 22 days; that petitioner had no actual notice of the proceeding for divorce; that it was fraudulently brought and prosecuted, and he was prevented from appearing and making defense by want of notice; that, if he had been allowed to make defense, he would have shown the want of residence of defendant in Tennessee for the period required by law; that the charges and allegations of the bill for divorce, as to cruel and inhuman treatment and failure to support and provide for her, which were the basis of the divorce, were untrue; that the defendant was herself in fault, and not entitled to divorce; that she was not a suitable person to have the custody of their children. From the action of the court in dismissing the petition, the petitioner has appealed and assigned errors.

The first assignment is that the trial judge erred in sustaining the motion to dismiss the petition upon the ground that the matter was controlled by statute (Shannon's Code, § 4890). The contention for defendant in this court is that a writ of error coram nobis is a mode of revising errors, and therefore falls within the letter and spirit of the statute above referred to. Chapter 14 of Shannon's Compilation is headed, "Of the Proceedings for the Correction of Errors." The first section under this chapter is section 4834, and is in these words: "Errors not embraced by the provisions of this Code, in regard to amendments, may be corrected in one or more of the following modes: (1) By writ of error coram nobis; (2) by rehearing, review, or new trial; (3) by certiorari; (4) by appeal; (5) by appeal in the nature of a writ of error; (6) by writ of error." The next article, being article 2 under this chapter, treats fully of the writ of error coram nobis and the cases in which it may be brought and the manner in which it may be prosecuted. It thus appears to be treated by statute as one of the modes provided for the revising or correcting of errors. Section 4838 provides that it may lie in the county, circuit, or chancery court, and by section 4839 within one year from the rendition of the judgment. By section 4844 the relief under this writ is confined to errors of fact of which the party seeking relief had no notice, or which he was prevented by disability from showing or correcting, or in which he was prevented from making defense by surprise, accident, mistake, or fraud, without fault on his part; and by section 4845 instances and examples are given of cases in which the writ will lie, such as infancy when the judgment was rendered, or a real defense to an action by motion of which the party aggrieved had no notice, and other like cases. It has been held by this court that the effect of section 4890, supra, is to prevent the review of a divorce decree by writ of error. Parmenter v. Parmenter, 3 Head, 225; McBee v. McBee, 1 Heisk. 561. Nor can a decree for divorce be opened under the broad provisions of section 6189, Shannon's Code, giving nonresident defendants time after service of copy of decree to defend against it. Parmenter v. Parmenter, 3 Head, 225; Owens v. Sims, 3 Cold. 545; McBee v. McBee, 1 Heisk. 561.

The argument is made with much plausibility and force that a writ of error coram nobis is in effect a new suit, and not a mere proceeding to correct or revise errors; that the object of this proceeding is to amend and set aside a former judgment (and attention is called to the fact that, in order to obtain it, a petition must be filed, a bond for cost must be entered into, 10 days' notice must be given, and errors must be assigned); and that the judgment is final as relates to the former judgment and suit. Crawford v. Williams, 1 Swan, 341. It is spoken of in many...