Woerner v. O'Neal Commission Co.

• Decision Date: 11 January 1936
• Parties: WOERNER et al. v. O'NEAL COMMISSION CO. et al.
• Court: Tennessee Supreme Court

89 S.W.2d 162

WOERNER et al. v. O'NEAL COMMISSION CO. et al.

Supreme Court of Tennessee.

January 11, 1936.

Appeal from Chancery Court, Madison County; De Witt Henderson, Chancellor.

Action by Mrs. V. J. Woerner and others against the O'Neal Commission Company and others. On motion to dismiss petition for certiorari filed in the Supreme Court to review the judgment of the Court of Appeals.

Motion overruled.

Bond & Bond and Victor Woerner, all of Jackson, for appellants.

Pearson & Spragins, of Jackson, for appellees.

GREEN, Chief Justice.

This case is before us on motion to dismiss a petition for certiorari, filed in this court to review the judgment of the Court of Appeals, because said petition was not filed within forty-five days after the final decree in the Court of Appeals.

An application was made to a member of this court for an extension of time in which to file such petition for certiorari and this application was granted. The petition was filed within the extended time. But it is insisted that the justice granting this extension was without jurisdiction to do so because the petitioner gave no notice of the application to adverse parties.

The statutory provision as to the time for filing petitions for certiorari to the Court of Appeals is contained in section 10629 of the Code and is as follows:

"Petitions for certiorari, to require the removal of any case from the court of appeals to the supreme court for review, shall be filed in the supreme court within forty-five days after final decree in the court of appeals, including decree upon any application to that court for a rehearing or for different or additional findings; provided, the supreme court, or any of the judges thereof, upon application, may extend such time for filing petitions for certiorari for an additional period not to exceed ninety days after final decree, as above defined, in the court of appeals."

The statute obviously does not require any notice of an application for an extension of time. It is urged, however, that rule 11 of this court does require such notice. That rule is as follows:

"Petitions for certiorari, or certiorari and supersedeas, to remove cases from the Court of Appeals to this court for review of the judgments and decrees of that court, must be filed with the clerk of this court, for the proper division thereof, within forty-five days from the entry of the final judgment or decree of the Court of Appeals, unless the time is extended by order of the court or a judge thereof, as authorized by the...