NOTES TO DECISIONS

1. In General.

This section contemplates specific findings by the chancellor and the court of appeals on the controverted issues of fact. Miller v. Kendrick, 153 Tenn. 596, 285 S.W. 51, 1925 Tenn. LEXIS 45 (1925).

The regulation as to contents of the record for the court of appeals insures proper practice below. The effect of the regulation is to secure a bill of exceptions in every chancery case tried on oral testimony, of which a review is sought and a motion for a new trial in every such case not tried by consent of parties expressed in writing. Fonville v. Gregory, 162 Tenn. 294, 36 S.W.2d 900, 1930 Tenn. LEXIS 90 (1931).

The legislative policy deducible from the acts creating the court of appeals and defining its jurisdiction reveals an intention to relieve the supreme court of the investigation of questions of fact in chancery cases and to give the supreme court the benefit of a finding of facts by the court of appeals on all material matters. Hibbett v. Pruitt, 162 Tenn. 285, 36 S.W.2d 897, 1930 Tenn. LEXIS 89 (1931).

Since the passage of this section, pertaining to the finding of facts by the chancellor, the practice in an equity cause is analogous to the practice in the law court, when the court is requested to and does find the facts; and his findings become a part of the technical record, and are open to review upon his conclusions from the facts, in the absence of a bill of exceptions. Ackerman v. Marable, 20 Tenn. App. 141, 95 S.W.2d 1286, 1934 Tenn. App. LEXIS 1 (Tenn. Ct. App. 1934).

A concurrent finding of facts by the clerk and the county judge had the same force and effect as the concurrent finding by the master and the chancellor in a chancery case. Summers v. Conger, 43 Tenn. App. 286, 307 S.W.2d 936, 1957 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1957).

2. Application.

This section is not applicable to a workers' compensation case, as such cases are not subject to review in the court of appeals. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

3. —Chancery.

Requirement of this section as to finding of facts applies only to chancery cases. Smith v. Fisher, 11 Tenn. App. 273, — S.W.2d —, 1929 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1929).

4. —Oral Testimony.

Cases “tried in the chancery court upon oral testimony” are expressly excluded from the statutory requirement that, in cases tried on the facts in a chancery court, both the chancellor and the court of appeals shall make written findings of fact. Ray v. Crain, 18 Tenn. App. 603, 80 S.W.2d 113, 1934 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1934); Lincoln County Bank v. Maddox, 21 Tenn. App. 648, 114 S.W.2d 821, 1937 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1937).

5. —Law Cases.

Provision in this section requiring chancellor to make and file finding of fact which shall become a part of the record is not applicable to law cases tried in circuit court. First Nat'l Bank v. Tate, 15 Tenn. App. 462, — S.W.2d —, 1932 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1932).

6. —Jury Trials.

This section and § 27-1-114 does not apply to jury cases, even when the court has directed a verdict on the ground of insufficient evidence. De Kalb County v. Tennessee Electric Power Co., 17 Tenn. App. 343, 67 S.W.2d 555, 1933 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1933).

The provision of this section and § 27-1-114 requiring the chancellor and the court of appeals to file written findings of fact, has no application to a case tried by a jury demanded by the parties or one of them. De Kalb County v. Tennessee Electric Power Co., 17 Tenn. App. 343, 67 S.W.2d 555, 1933 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1933); National Life & Acci. Ins. Co. v. American Trust Co., 17 Tenn. App. 516, 68 S.W.2d 971, 1933 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1933).

This section and § 27-1-114 has no application to a case tried by a jury. Caldwell v. Hodges, 18 Tenn. App. 355, 77 S.W.2d 817, 1934 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1934); Finchem v. Oman, 18 Tenn. App. 40, 72 S.W.2d 564, 1934 Tenn. App. LEXIS 11 (1934); Patillo v. Gambill, 22 Tenn. App. 485, 124 S.W.2d 272, 1938 Tenn. App. LEXIS 50 (Tenn. Ct. App. 1938); Tallent v. Fox, 24 Tenn. App. 96, 141 S.W.2d 485, 1940 Tenn. App. LEXIS 19 (Tenn. Ct. App. 1940).

This statute does not apply to cases tried by jury in circuit court, in which sort of cases it is province of court of appeals merely to determine whether there is any material evidence to take case to jury or to support the verdict. Melody v. Hamblin, 21 Tenn. App. 687, 115 S.W.2d 237, 1937 Tenn. App. LEXIS 69 (Tenn. Ct. App. 1937).

7. Findings by Chancellor.

A written finding of facts by the chancellor is a part of the record and need not be preserved by bill of exceptions or minute order. Crowder v. Stafford, 1 Tenn. App. 529, — S.W. —, 1926 Tenn. App. LEXIS 5 (Tenn. Ct. App. 1926).

Since the passage of Acts 1927, ch. 68 the finding of facts by the chancellor is not binding on court of appeals, but chancellor is still required to file written findings of facts as required by Acts 1925, ch. 100. Nashville v. Ward-Belmont School, 7 Tenn. App. 610, — S.W.2d —, 1928 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1928).

Requirement to make findings is mandatory on the chancellor, but duty is on appellant to see to it that findings are incorporated into record. Stiner v. Powells Valley Hardware Co., 168 Tenn. 99, 75 S.W.2d 406, 1934 Tenn. LEXIS 23 (1934).

This section requires a finding of facts by the chancellor in all cases tried on the facts in the chancery court and brought to the court of appeals for review. National Life & Acci. Ins. Co. v. Bryant, 27 Tenn. App. 294, 179 S.W.2d 937, 1943 Tenn. App. LEXIS 142 (Tenn. Ct. App. 1943).

Findings of fact of chancellor could be considered even though incorporated in the decree. Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697, 1957 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1957).

Upon review of action of Civil Service Commission of Nashville in dismissal of employees statement of trial judge in his final order that he had considered entire record sent up from the commission, argument of counsel and briefs filed from which he found that all of the grounds for relief prayed for in the petition for certiorari were not well taken, that the action of the commission was not arbitrary, illegal and without jurisdiction; that the same was based on material, competent, relevant and reliable evidence and did not violate any constitutional rights of the petitioners constituted compliance with §§ 27-1-113, 27-1-114 and 27-9-111 as to findings of fact and conclusions of law under the pleadings developed in the case. Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557, 1963 Tenn. LEXIS 447 (1963).

The additional findings of facts sought from the chancellor which were not covered in his memorandum opinion were not determinative of the right to prevail on appeal and therefore were harmless errors. Cooper v. Cordova Sand & Gravel Co., 485 S.W.2d 261, 1971 Tenn. App. LEXIS 253 (Tenn. Ct. App. 1971).

8. —Concurrence of Master and Chancellor.

Findings of facts by the master, concurred in by the chancellor, held conclusive on appeal, as to advertisement and sale of an automobile which had been sold under a conditional sales contract and recovered by seller by replevin suit. Wright v. Batchelor Motor Co., 2 Tenn. App. 468, — S.W. —, 1926 Tenn. App. LEXIS 45 (Tenn. Ct. App. 1926).

Court of appeals is not authorized to disturb master's finding of fact concurred in by chancellor. Winer v. Chattanooga Feed Co., 6 Tenn. App. 415, — S.W. —, 1927 Tenn. App. LEXIS 164 (Tenn. Ct. App. 1927).

Where the concurrent finding of the master and chancellor is one of law, or on a mixed question of law and fact, or a fact based on mere opinion of witnesses, such as estimates as to fees of attorneys, compensation of trustees, and the like, it is subject to review by the appellate court. Dale v. Hartman, 157 Tenn. 60, 6 S.W.2d 319, 1927 Tenn. LEXIS 49 (1928).

Master's report, concurred in by chancellor on exceptions as to facts, has force and effect of verdict of jury and judgment thereon, and is conclusive in supreme court and court of appeals. Dale v. Hartman, 157 Tenn. 60, 6 S.W.2d 319, 1927 Tenn. LEXIS 49 (1928).

Concurrence as to the value of definite items of personal property, as to which the witnesses had knowledge and as to which the appellate court could have no independent judicial judgment or opinion, is conclusive in the appellate court. Dale v. Hartman, 157 Tenn. 60, 6 S.W.2d 319, 1927 Tenn. LEXIS 49 (1928).

Where there is material evidence to support the concurrent findings of fact by the master and the chancellor, the court of appeals is bound by it. Lebanon Bank & Trust Co. v. Grandstaff, 24 Tenn. App. 162, 141 S.W.2d 924, 1940 Tenn. App. LEXIS 24 (Tenn. Ct. App. 1940).

In action to enjoin fraudulent disposal of oil lease, the bill being dismissed on motion of complainant, and case being referred to clerk and master to determine damages to defendants arising out of wrongful injunction, evidence sustained amount of damages found by clerk and master, and by the chancellor. Reagan v. Wolsieffer, 34 Tenn. App. 537, 240 S.W.2d 273, 1951 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1951).

Court of appeals would not disturb findings in report of special master concurred in by the special master and the chancellor. Kelso v. Kelso, 40 Tenn. App. 681, 292 S.W.2d 483, 1955 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1955); Hunt v. Temco, Inc., 61 Tenn. App. 35, 452 S.W.2d 879, 1969 Tenn. App. LEXIS 282 (1969).

The court of appeals has no power to disturb a concurrent finding of fact made by the master and chancellor in a matter of accounting, if there is any material evidence to support such finding. Pitt v. Bacherig, 43 Tenn. App. 273, 307 S.W.2d 798, 1957 Tenn. App. LEXIS 114 (Tenn. Ct. App. 1957).

A concurrence of the master and the chancellor is conclusive on appeal except (1) where it is upon an issue not proper to be referred, (2) where it is based on an error of law, (3) where it is upon a question of law or mixed fact and law, or (4) where it is not supported by any material evidence. Staggs v. Herff Motor Co., 216 Tenn. 113, 390 S.W.2d 245, 1965 Tenn. LEXIS 563 (1965); Ferrell v. Elrod, 63 Tenn. App. 129, 469 S.W.2d 678, 1971 Tenn. App. LEXIS 259 (Tenn. Ct. App. 1971); In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

Joint finding by chancellor and master has the same force and effect as a verdict of a jury approved by the trial judge. Ferrell v. Elrod, 63 Tenn. App. 129, 469 S.W.2d 678, 1971 Tenn. App. LEXIS 259 (Tenn. Ct. App. 1971).

The appellate court has no right to disturb findings by a special master concurred in by the chancellor unless it is a matter which should not have been referred to the master, or there is no evidence to sustain the finding. Hopkins v. First Tennessee Nat'l Bank, 560 S.W.2d 916, 1977 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1977); Security Land Co. v. Touliatos, 716 S.W.2d 918, 1986 Tenn. LEXIS 777 (1986).

Concurrent findings by the master and the trial court have the same force and effect as a jury verdict and will generally not be disturbed by the appellate courts. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

Findings concerning the fees charged by executors, administrators, and other professionals assisting in the administration of an estate involve mixed questions of law and fact and are not subject to the concurrent finding rule. In re Estate of Wallace, 829 S.W.2d 696, 1992 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1992).

Special master's finding of the appropriate “starting point” for calculating a debtor's debt to a creditor was not disturbed on appeal because material evidence supported the concurrent findings of the special master and a chancery court on the issue, so the findings were binding on appeal. Delta Dev. Corp. v. F. Fani Gulf Int'l, 393 S.W.3d 185, 2012 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 594 (Tenn. Aug. 16, 2012).

Because the master made findings of fact that were adopted by the chancellor, the trial court's findings of fact were conclusive on appeal, but this standard of review did not apply to conclusions of law or mixed questions of fact and law. In re King, — S.W.3d —, 2015 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 6, 2015).

In regards to the spouse's request for additional amounts of support, to the extent she challenged the factual findings, this failed due to the concurrent findings rule, which made the trial court's findings of fact conclusive on appeal; to the extent some of the findings were mixed questions of fact and law, no error was found. In re King, — S.W.3d —, 2015 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 6, 2015).

9. —Incorporation in Record.

As a prerequisite to the review of the facts in the court of appeals, it is necessary that appellant incorporate in the record a bill of exceptions. Ackerman v. Marable, 20 Tenn. App. 141, 95 S.W.2d 1286, 1934 Tenn. App. LEXIS 1 (Tenn. Ct. App. 1934). But see J. C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 1979 Tenn. LEXIS 415 (Tenn. 1979).

Consideration by the court of appeals of a stenographic report of the chancellor's oral opinion which was not authenticated by the chancellor, even though stipulated by the parties to be correct, contravenes unyielding rule requiring authentication by the chancellor of extraneous matter before such matter can become part of the record. Freeman v. Freeman, 197 Tenn. 75, 270 S.W.2d 364, 1954 Tenn. LEXIS 456 (1954).

10. Review of Chancellor's Findings.

The appellate court is precluded from passing on questions of fact that the chancellor was not requested to find, or that he did not, in fact, pass upon. Edington v. Kreis-Keener Shoe Co., 153 Tenn. 323, 283 S.W. 987, 1925 Tenn. LEXIS 29 (1926).

Proper practice where chancery court fails to make findings is for court of appeals to remand for making of adequate findings. Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802, 1934 Tenn. LEXIS 84 (1935).

Court of appeals is entitled to affirm decree of chancery court where findings are suppressed. Stiner v. Powells Valley Hardware Co., 168 Tenn. 99, 75 S.W.2d 406, 1934 Tenn. LEXIS 23 (1934).

Court of appeals was not entitled to affirm decree where there was no finding of fact or where finding made was inadequate. Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802, 1934 Tenn. LEXIS 84 (1935).

Ordinarily the weight and credibility of oral testimony is to be determined by the chancellor and will not be disturbed on appeal. Haynes v. Cumberland Builders, Inc., 565 S.W.2d 887, 1978 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1978).

11. —Presumptions.

Where the evidence is conflicting, there is a presumption of law in favor of the chancellor's view of the sufficiency of the proof. Bowers v. Springfield Fire & Marine Ins. Co., 21 Tenn. App. 227, 108 S.W.2d 798, 1937 Tenn. App. LEXIS 24 (Tenn. Ct. App. 1937).

On the trial in the appellate court of a chancery case tried on oral evidence there is a presumption of the correctness of the decree unless the evidence preponderates against it. Williams v. Cantrell, 22 Tenn. App. 443, 124 S.W.2d 29, 1938 Tenn. App. LEXIS 44 (Tenn. Ct. App. 1938).

12. —Facts Not Passed On.

Where a defendant filed a petition for the finding by the chancellor of additional facts, which the chancellor declined on the ground that the facts so requested to be found were covered by the facts already found, or were immaterial, or not supported by a preponderance of the testimony, the court of appeals will examine the record and the cause to determine error on the part of the chancellor in so ruling. Dushan v. Metropolitan Life Ins. Co., 4 Tenn. App. 614, — S.W. —, 1926 Tenn. App. LEXIS 205 (Tenn. Ct. App. 1926), superseded by statute as stated in, Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

Chancellor's refusal to make additional finding of facts was cause for reversal, on the record. Dushan v. Metropolitan Life Ins. Co., 4 Tenn. App. 614, — S.W. —, 1926 Tenn. App. LEXIS 205 (Tenn. Ct. App. 1926), superseded by statute as stated in, Armstrong v. Pilot Life Ins. Co., 656 S.W.2d 18, 1983 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1983).

Where chancellor's decree dismissing complainant's bill is supported by the facts found by him, there is no occasion for the court of appeals to adjudge the legal effect of additional facts pleaded by the defendant and shown by the proof. National Acceptance Co. v. Royal Indem. Co., 9 Tenn. App. 515, — S.W.2d —, 1929 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1929).

Where the chancellor made insufficient finding of facts the case might be remanded for additional findings, or the court of appeals could consider the case, no additional facts being necessary to enable it to determine the suit. Polston v. Scandlyn, 21 Tenn. App. 252, 108 S.W.2d 1104, 1937 Tenn. App. LEXIS 29 (Tenn. Ct. App. 1937).

13. —Evidence.

On appeal in the nature of a writ of error, it was held that the provision for a presumption in favor of the judgment below casts the burden of carrying the preponderance of the evidence on the appellant or plaintiff in error, and if he does not carry it, he is not entitled to a reversal. He cannot carry his burden if the record does not include a bill of exceptions containing the evidence on which the judgment below was rendered. Morrell v. Republic Fire Ins. Co., 168 Tenn. 137, 76 S.W.2d 317, 1934 Tenn. LEXIS 30 (1934).

It is not necessary that the court of appeals make a detailed statement, or review, of the “voluminous evidence” in the record as to issues decided by the chancellor in his findings. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

14. —Trial De Novo.

Issues not submitted to jury in an equity case, are for determination by the court and will be tried de novo on appeal. Warner v. Maroney, 16 Tenn. App. 78, 66 S.W.2d 244, 1932 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1932).

Chancellor's granting of motion for directed verdict amounted to finding that the evidence was undisputed, and his instruction to return a negative verdict withdrew the issue from the jury; so that on appeal that issue was triable de novo. Mutual Life Ins. Co. v. Burton, 167 Tenn. 606, 72 S.W.2d 778, 1934 Tenn. LEXIS 16 (1934).

Where chancellor withdrew case from jury and decreed upon evidence, case was triable de novo by court of appeals upon facts found by chancellor and any other material facts disclosed by evidence. Patey v. Metropolitan Life Ins. Co., 19 Tenn. App. 634, 93 S.W.2d 1271, 1936 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1936).

Under broad appeal from interpleader action in chancery court the case was reviewable de novo. Real Estate Management, Inc. v. Giles, 41 Tenn. App. 347, 293 S.W.2d 596, 1956 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1956).

Because the resolution of whether an aunt owned an undivided one-half interest in the property issue hinged on the interpretation of a trust document, it was a question of law; consequently, the concurrent finding by the special master and the chancery court was not conclusive, and the court of appeals reviewed it de novo with no presumption of correctness accorded to the trial court. Breen v. Sharp, — S.W.3d —, 2017 Tenn. App. LEXIS 742 (Tenn. Ct. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 182 (Tenn. Mar. 15, 2018).

15. Findings by Court of Appeals.

The duty is not imposed on the court of appeals of finding facts not found by the chancellor in a case where the facts expressly found by the chancellor afford a sufficient legal predicate for his decree, and there is no assignment of errors upon the failure of the chancellor to find additional facts. Freed v. Freed, 9 Tenn. App. 691, — S.W.2d —, 1929 Tenn. App. LEXIS 131 (Tenn. Ct. App. 1929). See also Dacus v. Knoxville Outfitting Co., 9 Tenn. App. 683, — S.W.2d —, 1929 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1929).

The court of appeals is under the duty of making a written finding of facts, and not simply to accept the chancellor's finding as conclusive, in those equity cases “where the material evidence is nearly evenly balanced.” Hibbett v. Pruitt, 162 Tenn. 285, 36 S.W.2d 897, 1930 Tenn. LEXIS 89 (1931).

This section requiring the court of appeals to file written findings of fact, has no application to a case tried by a jury. De Kalb County v. Tennessee Electric Power Co., 17 Tenn. App. 343, 67 S.W.2d 555, 1933 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1933); Dickson v. Stephens, 20 Tenn. App. 195, 96 S.W.2d 201, 1935 Tenn. App. LEXIS 12 (1935).

The court of appeals is not limited to facts found by the chancellor and is under duty to consider all material facts in the record, but if the “judgment” is supported by a preponderance of the evidence it will be affirmed, whether the court of appeals agrees with the chancellor's finding of facts or not. Simpson v. Harper, 21 Tenn. App. 431, 111 S.W.2d 882, 1937 Tenn. App. LEXIS 5 (Tenn. Ct. App. 1937).

Court of appeals is not limited in disposition of assignments of error to such facts as were found by trial court, but has duty to consider all material facts in the record. Simpson v. Harper, 21 Tenn. App. 431, 111 S.W.2d 882, 1937 Tenn. App. LEXIS 5 (Tenn. Ct. App. 1937).

Section 27-3-103 (repealed) is to be construed in pari materia with this section and § 27-3-101 (repealed), and it is obligatory on the court of appeals in chancery cases to reexamine the law and the facts, but unless the court finds that the evidence preponderates against the chancellor's findings, his decree stands. Beaty v. Hood, 43 Tenn. App. 228, 306 S.W.2d 671, 1957 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1957).

Where an action is tried by a circuit judge without the intervention of a jury, the findings of the trial judge and the court of appeals are binding on the supreme court to the extent that they concur, if there is any evidence to support the findings. Davis v. Bank of Illinois, 561 S.W.2d 144, 1978 Tenn. LEXIS 574 (Tenn. 1978).

Pursuant to T.C.A. § 27-1-113, the court of appeals had to reduce its findings of fact to writing and then provide a reasonable opportunity for the parties to examine the findings and to request different or additional findings, and as the court of appeals did not comply with the statute, it had no application to the case, and T.R.A.P. 13(d) governed the standard of review upon appeal. In re Adoption of A.M.H., 215 S.W.3d 793, 2007 Tenn. LEXIS 235 (Tenn. 2007).

16. —Ultimate Determinative Facts.

The chancellor and court of appeals are only required to make a written finding of the ultimate determinative facts in chancery cases and are not required to set out all evidence upon which such conclusions are based. Julian v. American Nat'l Bank, 21 Tenn. App. 137, 106 S.W.2d 871, 1937 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1937); Melody v. Hamblin, 21 Tenn. App. 687, 115 S.W.2d 237, 1937 Tenn. App. LEXIS 69 (Tenn. Ct. App. 1937); Gregory v. Merchants State Bank, 23 Tenn. App. 567, 135 S.W.2d 465, 1939 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1939); Clardy v. Clardy, 23 Tenn. App. 608, 136 S.W.2d 526, 1939 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1939); Higgins v. Lewis, 23 Tenn. App. 648, 137 S.W.2d 308, 1939 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1939); Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940); Watson v. Watson, 25 Tenn. App. 28, 149 S.W.2d 953, 1940 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1940).

The court of appeals is required to make and file written finding of facts but is not required to set out all the evidence upon which such conclusion is based. Ellis v. Ellis, 63 Tenn. App. 361, 472 S.W.2d 741, 1971 Tenn. App. LEXIS 225 (Tenn. Ct. App. 1971).

17. Review by Supreme Court.

Findings of facts by court of appeals are binding on the supreme court unless challenged by petition for certiorari. Kenner v. City Nat'l Bank, 164 Tenn. 119, 46 S.W.2d 46, 1931 Tenn. LEXIS 20 (1932), rehearing denied, 164 Tenn. 288, 47 S.W.2d 756, 1931 Tenn. LEXIS 34 (1932).

Writ of certiorari was denied by supreme court where court of appeals affirmed decree of chancery court due to absence of findings from record, since court assumed that findings were omitted because findings were adverse to appellant. Stiner v. Powells Valley Hardware Co., 168 Tenn. 99, 75 S.W.2d 406, 1934 Tenn. LEXIS 23 (1934).

Question of law is presented by assignment that verdict was not supported by evidence or that trial court erred in its ruling on motion for directed verdict; and where petition for certiorari is filed to obtain review of judgment rendered by court of appeals, all evidence in record is examined by supreme court to ascertain whether right conclusion was reached on question of law thus presented. Ray v. Crain, 18 Tenn. App. 603, 80 S.W.2d 113, 1934 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1934).

Where court of appeals committed error in affirming decree of chancery court due to absence of finding, and supreme court granted writ of certiorari, an oral argument was not necessary, since case had not been finally determined by court of appeals. Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802, 1934 Tenn. LEXIS 84 (1935).

Where there was material evidence in the record to support the factual conclusion of both the trial court and the court of appeals, it was foreclosed on appeal to the supreme court. East Sevier County Utility Dist. v. Wachovia Bank & Trust Co., 570 S.W.2d 850, 1978 Tenn. LEXIS 635 (Tenn. 1978).

18. —Absence of Concurrence.

Where the findings of the chancellor are not appealed from and there is no concurrent finding by the court of appeals, the supreme court need not read the record to determine the facts relied on. Edington v. Kreis-Keener Shoe Co., 153 Tenn. 323, 283 S.W. 987, 1925 Tenn. LEXIS 29 (1926).

A review of the facts by the supreme court is permissible only to the extent that the findings of the chancellor and the court of appeals are shown by the record to be contradictory. Miller v. Kendrick, 153 Tenn. 596, 285 S.W. 51, 1925 Tenn. LEXIS 45 (1925); Cooley v. East & West Ins. Co., 166 Tenn. 405, 61 S.W.2d 656, 1932 Tenn. LEXIS 149 (1933); Joest v. John A. Denie's Sons Co., 174 Tenn. 410, 126 S.W.2d 312, 1938 Tenn. LEXIS 107 (1939).

To the extent that the findings of the trial judge and of the court of appeals do not concur, the facts are open to a de novo examination in the supreme court with the presumption, however, that the judgment of the trial court was correct unless the evidence preponderates against it. Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 1977 Tenn. LEXIS 678 (Tenn. 1977).

19. —Concurrence.

Concurrent findings of fact by chancellor and the court of appeals are conclusive on supreme court, if findings are supported by material evidence. Knight v. Cooley, 131 Tenn. 21, 173 S.W. 435, 1914 Tenn. LEXIS 78 (1915); Allen v. Effler, 144 Tenn. 685, 235 S.W. 67, 1921 Tenn. LEXIS 64 (1921); Potts v. Coffman, 146 Tenn. 282, 240 S.W. 783, 1922 Tenn. LEXIS 2 (1922); Bray v. Blue Ridge Lumber Co., 154 Tenn. 342, 289 S.W. 504, 1926 Tenn. LEXIS 131 (1926); Kenner v. City Nat'l Bank, 164 Tenn. 119, 46 S.W.2d 46, 1931 Tenn. LEXIS 20 (1932), rehearing denied, 164 Tenn. 288, 47 S.W.2d 756, 1931 Tenn. LEXIS 34 (1932); Fidelity Mut. Life Ins. Co. v. Guess, 171 Tenn. 205, 101 S.W.2d 694, 1936 Tenn. LEXIS 81 (Tenn. Jan. 16, 1937); Freels v. Northrup, 678 S.W.2d 55, 1984 Tenn. LEXIS 944 (Tenn. 1984).

Findings of the chancellor and of the court of appeals upholding a settlement pleading in a suit for accounting are binding on the supreme court, though the two lower courts differed as to where lay the burden of proof, on the complainant or on the defendant. Miller v. Kendrick, 153 Tenn. 596, 285 S.W. 51, 1925 Tenn. LEXIS 45 (1925).

Where there was abundant evidence to sustain a finding of fact made by the lower court in a chancery case, which finding was concurred in by the court of appeals, such finding is conclusive on the supreme court. Harwood-Yancey Co. v. Lawrenceburg Warehouse Co., 167 Tenn. 14, 65 S.W.2d 192, 1933 Tenn. LEXIS 2 (1933), cert. denied, Striplin v. Lawrenceburg Warehouse Co., 292 U.S. 645, 54 S. Ct. 779, 78 L. Ed. 1496, 1934 U.S. LEXIS 906 (1934).

Under this section the supreme court is not only bound by concurrent finding of facts by the chancellor and the court of appeals but is also bound by concurrently found inferences from such facts if such inferences are justifiably drawn and all that remains to the supreme court in such a case is a determination of whether or not such inferences were to be fairly drawn from such undisputed facts. Conaway v. New York Life Ins. Co., 171 Tenn. 290, 102 S.W.2d 66, 1936 Tenn. LEXIS 92 (1937).

A review as provided in § 27-3-103 (repealed) is a review de novo within the meaning of § 27-3-101 (repealed) so that the findings of the trial court and the court of appeals will be binding on the supreme court to the extent that they concur if there is evidence to support such findings. McCalla v. Rogers, 173 Tenn. 239, 116 S.W.2d 1022, 1938 Tenn. LEXIS 13 (1938).

Where the court of appeals stated that “for the purpose of disposition of what we think is the determinative question it may be assumed that the chancellor was correct” as to his findings, this amounted to a concurrent finding by the chancellor and the court of appeals. Joest v. John A. Denie's Sons Co., 174 Tenn. 410, 126 S.W.2d 312, 1938 Tenn. LEXIS 107 (1939).

Where there was abundant proof to sustain the findings of the unemployment compensation division which were concurred in by the chancellor, the supreme court was bound by them. Reese v. Hake, 184 Tenn. 423, 199 S.W.2d 569, 1947 Tenn. LEXIS 395 (1947).

If there is any evidence in the record to support a concurrent finding of the chancery court and the court of appeals, it is binding on supreme court. Provident Wash. Ins. Co. v. Reese, 213 Tenn. 355, 373 S.W.2d 613, 1963 Tenn. LEXIS 499 (1963), rehearing denied, Provident Washington Ins. Co. v. Reese, 213 Tenn. 355, 373 S.W.2d 613, 1964 Tenn. LEXIS 395 (1964); Lake Hiwassee Dev. Co. v. Pioneer Bank, 535 S.W.2d 323, 1976 Tenn. LEXIS 578 (Tenn. 1976); Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 1977 Tenn. LEXIS 678 (Tenn. 1977).

It was argued in a petition to rehear that both the trial court and the court of appeals found as a fact that a certain memorandum was the contract of insurance and that the supreme court is bound by such concurrent finding of fact; however, the proper construction of an unambiguous written instrument presents a question of law for the court, not a question of fact. Provident Wash. Ins. Co. v. Reese, 213 Tenn. 355, 373 S.W.2d 613, 1963 Tenn. LEXIS 499 (1963), rehearing denied, Provident Washington Ins. Co. v. Reese, 213 Tenn. 355, 373 S.W.2d 613, 1964 Tenn. LEXIS 395 (1964).

Suits for divorce are treated as chancery suits so that concurrent findings by the trial judge and the court of appeals are conclusive on the supreme court. Moore v. Moore, 224 Tenn. 611, 460 S.W.2d 844, 1970 Tenn. LEXIS 363 (1970).

Where documentary evidence and testimony of petitioner's secretary provided material evidence in support of the factual finding of the Chancellor and the court of appeals, that concurrent finding was conclusive in the supreme court. Hickory Springs Mfg. Co. v. Evans, 541 S.W.2d 97, 1976 Tenn. LEXIS 526 (Tenn. 1976).

Where the trial judge has failed to make specific findings, although a particular finding might be considered to be implicit in his holding, the supreme court is not bound by the “concurrent finding of fact” rule on the theory that the trial judge and the court of appeals have made concurrent findings, and in such situations the supreme court will review the record with a view to determine where the preponderance of the evidence lies with respect to the issue of fact in question. Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 1977 Tenn. LEXIS 678 (Tenn. 1977).

A concurrent finding of fact by the trial court and the appeals court, being supported by material evidence, is binding on the supreme court. Broyles v. Ford Life Ins. Co., 594 S.W.2d 691, 1980 Tenn. LEXIS 412 (Tenn. 1980).

The rule that concurrent findings of the chancery court and the court of appeals are binding on the supreme court, if there be any evidence to support them, applies only to findings of fact, not to conclusions of law. Hamblen County v. Morristown, 656 S.W.2d 331, 1983 Tenn. LEXIS 696 (Tenn. 1983).

NOTES TO DECISIONS

1. Cases Not “Determined.”

Where case is not “determined” (denial of petition for rehearing) by the Supreme Court, but by the Court of Appeals, this section has no application. Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241, 1946 Tenn. LEXIS 233 (1946).

This section requiring written memorandum by court does not apply to denial of petition for writ of certiorari, as denial of writ does not indicate approval of anything but the result reached by Court of Appeals. Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241, 1946 Tenn. LEXIS 233 (1946).

NOTES TO DECISIONS

1. Correction of Judgment.

Judgment of Supreme Court may be corrected to conform to opinion which is recognized as part of the record of the cause; and if the decree of the court does not properly embody the judgment of the court as it appears from the opinion, it may be corrected at the next term. Polk v. Pledge, 52 Tenn. 371, 1871 Tenn. LEXIS 270 (1871).

Where defendant was convicted of assault with intent to commit voluntary manslaughter and his conviction was affirmed by the Supreme Court, but through error, the clerk in drawing the judgment against him, entered judgment that the defendant was guilty of the offense of voluntary manslaughter the judgment could be corrected to conform to the opinion since the opinions of the justices are recognized as a part of the record of the case. Taylor v. State, 189 Tenn. 467, 225 S.W.2d 822, 1949 Tenn. LEXIS 449 (1949).

NOTES TO DECISIONS

1. Application and Scope.

This statute does not give the court statutory or inherent power to award damages for the initiation of frivolous suits, and where employee brought frivolous suit under workers' compensation law and lower court improvidently decided in her favor, employer could not be granted damages upon his appeal from the judgment. Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

Where petition to hold appellees in contempt of court was dismissed by trial court, appellees were entitled to relief under this section since there was no right to appeal from acquittal in a contempt case and there was no factual evidence contrary to the trial court's holding. Zwick v. Jones, 589 S.W.2d 664, 1979 Tenn. App. LEXIS 342 (Tenn. Ct. App. 1979).

If the court determines a martial dissolution agreement (MDA) is inapplicable, it should so state on the record and then turn to the parties'  statutory claims under which any award of fees is within the sound discretion of the trial or appellate courts unless otherwise specified in the statute; even if the court determines an award of attorney's fees is mandated by the terms of the MDA, the court still should also review the claims for fees or expenses under any applicable statutory authority. Eberbach v. Eberbach, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

It is important for the courts to ensure they conduct an analysis under both the parties'  contract and any applicable statutes or other equitable grounds, and in the event the award is reversed on one ground, it may be upheld on another; analyzing all applicable grounds for attorney's fee awards ensures judicial economy is maximized. Eberbach v. Eberbach, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

In cases where parties seek attorney's fees under statutory authority alone, the statute governs the award, is the exception to the American Rule, and is the basis for the court's authority to grant fees on appeal; thus, when appellate attorney's fees are requested pursuant to statutes that expressly permit the court to exercise its discretion, the court of appeals should analyze a request by exercising its discretion to determine whether an award to the prevailing party is appropriate. Eberbach v. Eberbach, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

Because fee provisions in marital dissolution agreements are binding on the parties, when confronted with a request for fees under both contractual and statutory authority, the courts should look to the parties'  contract first before moving on to any discretionary analysis under statutes. Eberbach v. Eberbach, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

2. Frivolous Appeals.

Where employee in workers' compensation case adduced no evidence to dispute testimony of employer's witnesses, a successful appeal by defendant would have required a de novo review of the evidence, contrary to state practice, so that defendant's appeal was frivolous. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 1977 Tenn. LEXIS 519 (Tenn. 1977).

The appellate court invoked this section sua sponte where defendant filed a complaint alleging that the trial court judgment was void from the beginning because the defendant was denied an adequate opportunity to prepare its defense. Norton Creek Community Asso. v. Rodman Corp., 560 S.W.2d 914, 1977 Tenn. App. LEXIS 301 (Tenn. Ct. App. 1977).

When an appeal in a workers' compensation case had no reasonable chance of success and the material issues raised by the appeal were issues of fact with material evidence supporting the trial judge's findings on those issues, the appeal was frivolous and appellee was entitled to damages under this section. Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920, 1979 Tenn. LEXIS 523 (Tenn. 1979); Bailey v. Knox County, 732 S.W.2d 597, 1987 Tenn. LEXIS 1006 (Tenn. 1987).

Where hospital defendant in malpractice action was granted a summary judgment prior to the hearing of evidence it was a violation of Tenn. Const., art. I, § 6 to grant a motion to add the hospital as a party defendant after the evidence had been presented, and the appeal of the rejection of that motion was frivolous. Guess v. Maury, 726 S.W.2d 906, 1986 Tenn. App. LEXIS 3257 (Tenn. Ct. App. 1986), overruled in part, Elliott v. Cobb, 320 S.W.3d 246,  2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

The failure to provide a transcript from which the appellate court could determine sufficiency of evidence resulted in a frivolous appeal. McDonald v. Onoh, 772 S.W.2d 913, 1989 Tenn. App. LEXIS 282 (Tenn. Ct. App. 1989), cert. denied, 493 U.S. 859, 110 S. Ct. 168, 107 L. Ed. 2d 125, 1989 U.S. LEXIS 4157 (1989).

Court granted costs and attorney fees in frivolous appeal in legal malpractice action because plaintiff failed to introduce a counter expert affidavit even though he had asked for a continuance to obtain such an affidavit. Bursack v. Wilson, 982 S.W.2d 341, 1998 Tenn. App. LEXIS 465 (Tenn. Ct. App. 1998).

Delinquent taxpayer who unsuccessfully appealed dismissal of an action to quiet title and set aside a tax lien on the taxpayer's property was not sanctioned. The court determined the appeal was not frivolous. Stigall v. Lyle, 119 S.W.3d 701, 2003 Tenn. App. LEXIS 89 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 773 (Tenn. Sept. 2, 2003).

In a personal injury suit, defendant was entitled to damages for a frivolous appeal because plaintiff's appeal, although it was nominally an appeal from a subsequent lawsuit, raised issues against defendant solely related to an original trial that had concluded over four months prior to the notice of appeal. Young v. Barrow, 130 S.W.3d 59, 2003 Tenn. App. LEXIS 678 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 80 (Tenn. Jan. 26, 2004).

Optionor's request for attorney fees for a frivolous appeal were denied where the optionee appealed the trial court's decision that the option contract had expired; the optionee claimed that it had been impossible to give notice of his intention to exercise the option on the last day of the contract, because the optionor had been out of town on that day. Silsbe v. Houston Levee Indus. Park, Inc., 165 S.W.3d 260, 2004 Tenn. App. LEXIS 583 (Tenn. Ct. App. 2004), appeal denied, Silsbe v. Houston Levee Indus. Park, L.L.C., — S.W.3d —, 2005 Tenn. LEXIS 203 (Tenn. Feb. 28, 2005).

In an appeal by the mother and her husband of the trial court's denial of their petition to terminate the biological father's parental rights, the court rejected the biological father's request for attorney fees under T.C.A. § 36-5-103(c) because he was not enforcing any prior custody decree, but the father was entitled to damages under T.C.A. § 27-1-122 for the frivolous appeal. In re M.L.D., 182 S.W.3d 890, 2005 Tenn. App. LEXIS 339 (Tenn. Ct. App. 2005), appeal denied, In re Adoption of M.L.D., — S.W.3d —, 2005 Tenn. LEXIS 779 (Tenn. Sept. 12, 2005).

Where notice of a tax sale had not been given, the trial court did not abuse its discretion in granting summary judgment to the owners in their suit against the purchaser and in denying the purchaser's Tenn. R. Civ. P. 59.04 motion to set aside the summary judgment; the purchaser's post-judgment evidence would not have created genuine issue of material fact as to whether notice of the tax sale had been given and her appeal of the trial court's denial was frivolous, justifying an award of damages to the owners including their attorney's fees and expenses incurred in defending the appeal. Whalum v. Marshall, 224 S.W.3d 169, 2006 Tenn. App. LEXIS 304 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1131 (Tenn. 2006).

Because the broker provision of the agreement at issue between the building owner and management company was clear and its only reasonable meaning plain, the management company's appeal was a frivolous appeal, and the appellate court remanded to the trial court to determine the expenses due under T.C.A. § 27-1-122. Creswell v. Creswell, 238 S.W.3d 263, 2007 Tenn. App. LEXIS 367 (Tenn. Ct. App. June 7, 2007), appeal denied, In re Estate of Creswell v. Creswell, — S.W.3d —, 2007 Tenn. LEXIS 939 (Tenn. Oct. 15, 2007).

Husband's appeal was frivolous and undertaken solely to delay payment of the spousal support he was obligated to pay; husband consistently flouted trial court's order to pay pendente lite support to the wife and he gave appellate court an appellate record with little to support his argument. Williams v. Williams, 286 S.W.3d 290, 2008 Tenn. App. LEXIS 416 (Tenn. Ct. App. July 28, 2008).

Mother was entitled to the reasonable fees and costs she accrued in defense of a father's appeal of an order modifying a permanent parenting plan to include payment for the children's private school tuition because the appeal had no reasonable chance of success given the state of the record and the state of the father's appellate brief. Chiozza v. Chiozza, 315 S.W.3d 482, 2009 Tenn. App. LEXIS 793 (Tenn. Ct. App. Nov. 20, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 540 (Tenn. May 20, 2010).

Appeal was devoid of merit and so lacking in justiciable issues that it constituted a frivolous appeal within the meaning of T.C.A. § 27-1-122. The patient was unable to establish a prima facie case of medical malpractice, the case was commenced after the statute of limitations had run, and the patient failed to articulate any basis upon which to conclude that the trial court erred by awarding $9,000 in discretionary costs. Barnett v. Tenn. Orthopaedic Alliance, 391 S.W.3d 74, 2012 Tenn. App. LEXIS 659 (Tenn. Ct. App. Sept. 19, 2012), appeal dismissed, — S.W.3d —, 2013 Tenn. LEXIS 1 (Tenn. Jan. 2, 2013).

Owner's appeal was frivolous because his appeal of the dismissal of his second complaint against a city was barred by res judicata and was devoid of merit where both the original action and the current complaint involved the same parties and the same issues, the owner simply was attempting to re-raise and re-litigate the same issues that were finally decided in his original action. Levitt v. City of Oak Ridge, 456 S.W.3d 547, 2014 Tenn. App. LEXIS 558 (Tenn. Ct. App. Sept. 10, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 58 (Tenn. Jan. 15, 2015).

Defendants were entitled to damages because the plaintiffs' appeal was deemed frivolous and they waived any issues they might have attempted to raise on appeal where their brief did not contain a statement of the issues, the purported authorities listed in the table of authorities were not cited anywhere else within the brief, and the purported argument section of the brief contained no references whatsoever to the record and no citations to authorities. Murray v. Miracle, 457 S.W.3d 399, 2014 Tenn. App. LEXIS 583 (Tenn. Ct. App. Sept. 23, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 132 (Tenn. Feb. 19, 2015).

Court should tread carefully before concluding that an appeal is frivolous; in this case, the issues raised by defendant were so devoid of merit that they had no reasonable chance of success, such that the appeal was frivolous and plaintiff was entitled to the costs incurred in defending against it. Baugh v. Moore, — S.W.3d —, 2015 Tenn. App. LEXIS 90 (Tenn. Ct. App. Feb. 25, 2015).

Mother's appeal was devoid of merit and deemed frivolous because she failed to provide a transcript of the evidence or a statement of the evidence, the guardian ad litem was not statutorily required to investigate the records of every medical professional that examined the child, and the appellate court had to assume that there was sufficient evidence to support the trial court's best interest determination. Cremeens v. Cremeens, — S.W.3d —, 2015 Tenn. App. LEXIS 278 (Tenn. Ct. App. Apr. 29, 2015).

Neighbor and his predecessor were not entitled to attorneys'  fees on appeal because the owner's appeal was not devoid of merit or any indication that it was undertaken for delay. Evans v. Green Tree Servicing, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 614 (Tenn. Ct. App. July 28, 2015).

Appellees contended that appellants'  disregard for the appellate rules on briefs warranted frivolous appeal damages, plus the appeal lacked any merit, as evidenced by appellants'  resort to unsupported allegations that did not appear in the record; the appeal was frivolous and damages were awarded to appellees. Lewis v. Williams, — S.W.3d —, 2015 Tenn. App. LEXIS 637 (Tenn. Ct. App. Aug. 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1037 (Tenn. Dec. 11, 2015).

Plaintiff's brief on appeal was so severely deficient that the appellate court was unable to determine even what specific issues plaintiff was attempting to raise on appeal. Pursuant to T.C.A. § 27-1-122, the appellate court found plaintiff's appeal frivolous and awarded defendants damages for the frivolous appeal. Webb v. Sherrell, — S.W.3d —, 2015 Tenn. App. LEXIS 645 (Tenn. Ct. App. Aug. 12, 2015).

Husband's appeal of the trial court's decision denying him relief from a divorce decree under Tenn. R. Civ. P. 60.02 was not frivolous where although the appellate court ruled adversely to the husband concerning the issues he raised, the appellate court was unable to conclude that his appeal was devoid of merit. Selitsch v. Selitsch, 492 S.W.3d 677, 2015 Tenn. App. LEXIS 841 (Tenn. Ct. App. Oct. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 144 (Tenn. Feb. 17, 2016).

Frivolous attorney fees were denied; although plaintiff's appeal was not successful, the appeal was not frivolous or taken solely for delay, her brief was fully compliant with the rule and her argument was cogent, and it appeared the trial court failed to address plaintiff's contentions and plaintiff would not be sanctioned for seeking redress. Green v. YMCA of Memphis & the Mid-South, — S.W.3d —, 2015 Tenn. App. LEXIS 891 (Tenn. Ct. App. Nov. 4, 2015).

Homeowner was entitled to costs, interest on the judgment, and expenses because an unlicensed contractor's appeal was deemed frivolous where his arguments were so deficient that it was impossible to determine what specific issues he was raising. Johnson v. New Wave, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 998 (Tenn. Ct. App. Dec. 30, 2015).

The case was remanded to the trial court for a determination of an award for frivolous appeal damages because a borrower and his limited liability company failed to comply with the appellate rules for briefs. W & H LLC v. Cmty. Bank N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 54 (Tenn. Ct. App. Jan. 29, 2016), appeal denied, W & H LLC v. Cmty. Bank NA, — S.W.3d —, 2016 Tenn. LEXIS 581 (Tenn. Aug. 19, 2016).

Case was remanded for a determination of the amount of damages to be awarded to doctors and professional entities because a patient's brief wholly failed to articulate, identify, or support reversible error in any ruling of the trial court; the appeal was frivolous because it was devoid of merit and had no reasonable chance of success. Ibrahim v. Williams, — S.W.3d —, 2016 Tenn. App. LEXIS 160 (Tenn. Ct. App. Feb. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 471 (Tenn. June 23, 2016).

Because the appellate court found a husband's appeal from the trial court's order granting the wife an order of protection frivolous, it awarded the wife her attorney fees incurred on appeal under T.C.A. § 27-1-122. Honeycutt ex rel. Alexander H. v. Honeycutt, — S.W.3d —, 2016 Tenn. App. LEXIS 169 (Tenn. Ct. App. Mar. 2, 2016).

Wife's appeal of a divorce action was frivolous where she substantially failed to comply with the Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals, and the lack of merit to the issues that were properly presented result in the appeal having no reasonable chance of success. Bracey v. Bracey, — S.W.3d —, 2016 Tenn. App. LEXIS 299 (Tenn. Ct. App. Apr. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 673 (Tenn. Sept. 23, 2016).

When customers sued a bank after the customers'  prior suit was dismissed with prejudice, and the subsequent suit was dismissed based on res judicata, the customers'  appeal of that dismissal was frivolous because the appeal had no chance of success. Craig v. Peoples Cmty. Bank, — S.W.3d —, 2016 Tenn. App. LEXIS 1005 (Tenn. Ct. App. Dec. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 303 (Tenn. May 28, 2017).

Because an employer's appeal from a final order awarding disability benefits to an employee was frivolous, the employee was entitled to reasonable attorney fees and expenses incurred in defending the appeal. Harris v. Mastec N. Am., Inc., — S.W.3d —, 2017 Tenn. LEXIS 894 (Tenn. Sept. 18, 2017).

Ex-husband's appeal was deemed frivolous because it was woefully short of stating a claim and was without merit to a point where success was not reasonably possible; accordingly, purchasers were entitled to the costs they incurred in defending the appeal. Trigg v. Church, — S.W.3d —, 2018 Tenn. App. LEXIS 380 (Tenn. Ct. App. July 2, 2018).

As the appeal was frivolous and without merit, damages under the statute were awarded. Primary Residential Mortg., Inc. v. Baker, — S.W.3d —, 2018 Tenn. App. LEXIS 409 (Tenn. Ct. App. July 23, 2018).

Appeal was frivolous as it was devoid of merit. Shreibman v. First Class Corp., — S.W.3d —, 2018 Tenn. App. LEXIS 754 (Tenn. Ct. App. Dec. 21, 2018).

Father's appeal of the trial court's visitation order was frivolous because he offered no reasonable basis to reverse the decision. Wightman v. Wightman, — S.W.3d —, 2019 Tenn. App. LEXIS 247 (Tenn. Ct. App. May 21, 2019).

Case was an appropriate one to award attorney's fees against a limited liability company (LLC) and its attorney because the appeal was frivolous; the positions advanced by the LLC and attorney were not only unsupported, but the attorney made comments to the court of appeals that directly contradicted prior admissions on points the LLC conceded in the trial court. Nationwide Invs., LLC v. Pinnacle Bank, — S.W.3d —, 2019 Tenn. App. LEXIS 458 (Tenn. Ct. App. Sept. 16, 2019).

While the case cited by defendants was similar to this case, it nevertheless bore a significant and distinguishing fact, and with such a glaring difference, together with the inadequate state of the record on appeal, defendants'  appeal had no reasonable chance of success and plaintiff was entitled to fees. Vanquish Express, LLC v. Dixie Ohio Xpress, LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 615 (Tenn. Ct. App. Dec. 20, 2019).

Trial court properly denied the plaintiffs'  motion for relief —claiming that the prior judgment and opinion were void—because, with the issuance of the appellate court's mandate, the judgment and opinion in the prior action were final and became the law of the case and the trial court had no authority to revise or modify the prior opinion where none of the exceptions to the law of the case doctrine were applicable; the defendant's attorney was entitled to an award of her fees because the plaintiffs'  appeal was frivolous. Grant v. Anderson, — S.W.3d —, 2020 Tenn. App. LEXIS 257 (Tenn. Ct. App. June 2, 2020).

3. Bona Fide Appeals.

Where expert medical testimony in workers' compensation action had limited claimant's disability to 30 to 35 percent permanent partial disability, claimant was not entitled to judgment against employer's insurance carrier for damages allegedly incurred as the result of insurer's appeal from chancellor's award of benefits to claimant for 60 percent permanent partial disability. Employers Ins. Co. v. Heath, 536 S.W.2d 341, 1976 Tenn. LEXIS 628 (Tenn. 1976).

Where the evidence in favor of the employer was as competent and persuasive as that offered by the employee the appeal was not so devoid of merit as to justify damages against the employer who appealed in good faith. Combustion Engineering, Inc. v. Kennedy, 562 S.W.2d 202, 1978 Tenn. LEXIS 585 (Tenn. 1978).

Petition to rehear and related motions were not frivolous for purposes of this section. Hood v. Roadtec, Inc., 785 S.W.2d 359, 1989 Tenn. App. LEXIS 468 (Tenn. Ct. App. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. App. LEXIS 562 (Tenn. Ct. App. Aug. 18, 1989).

In this workers' compensation case, sanctions were not ordered against the employer who lost on appeal; the employer's appeal of the decision granting death benefits to the widow and son of an employee who suffered a fatal heart attack while driving the employer's vehicle home from work was not so devoid of merit such that it had no reasonable chance of succeeding. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

4. Non-Frivolous Appeal.

Trial court abused its discretion when it granted the clerk's Tenn. R. Civ. P. 11 motion for sanctions and awarded appellate attorney's fees to the clerk for the trustee's filing of pleadings in connection with the first appeal because the clerk's motion for sanctions was in essence a motion for appellate attorney's fees pursuant to T.C.A. § 27-1-122 for the filing of a frivolous appeal. Under § 27-1-122, the decision on whether to award damages for the filing of a frivolous appeal rested solely in the discretion of the appellate court, and it was improper for the trial court to essentially grant appellate attorney's fees to the clerk under Tenn. R. Civ. P. 11. Marra v. Bank of N.Y., 310 S.W.3d 329, 2009 Tenn. App. LEXIS 529 (Tenn. Ct. App. Aug. 4, 2009), rehearing denied, 310 S.W.3d 329, 2009 Tenn. App. LEXIS 909 (Tenn. Ct. App. 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 214 (Tenn. Feb. 22, 2010).

In an appeal from the denial of an employee's motion to set aside a judgment approving a workers'  compensation settlement, the employer was not entitled to damages for a frivolous appeal because the employee's argument was not so devoid of merit that it had no reasonable chance of succeeding and was not taken solely for the purpose of delay. Henderson v. Saia, Inc., 318 S.W.3d 328,  2010 Tenn. LEXIS 678 (Tenn. Aug. 24, 2010), rehearing denied, Henderson v. SAIA, Inc., — S.W.3d —, 2010 Tenn. LEXIS 866 (Tenn. Sept. 8, 2010).

Husband's invitation to burden a wife with an additional award of fees under T.C.A. § 27-1-122 was declined given the confusion of all the parties and the trial court regarding the finality of an order. Byrnes v. Byrnes, 390 S.W.3d 269, 2012 Tenn. App. LEXIS 306 (Tenn. Ct. App. May 14, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 908 (Tenn. Dec. 11, 2012).

Because the appeal was not found to be devoid of merit, an award of damages for frivolous appeal was denied. Avery Place, LLC v. Highways, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 957 (Tenn. Ct. App. Dec. 7, 2015), review denied and ordered not published, Avery Place v. Highways, Inc., — S.W.3d —, 2016 Tenn. LEXIS 275 (Tenn. Apr. 6, 2016).

In a case where litigation costs were assessed against a surety after the dismissal of a breach of contract claim for failure to state a claim, a bank was not awarded costs and attorney's fees on appeal because it was not frivolous, especially in light of the fact that a surety prevailed on appeal. Snyder v. First Tenn. Bank, N.A., — S.W.3d —, 2016 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 3, 2016).

Although the trial court's grant of summary judgment was affirmed, the ruling regarding attorney fees was reversed; the appeal was not frivolous or taken for any subversive purpose, and thus fees on appeal were denied. Butler v. Pitts, — S.W.3d —, 2016 Tenn. App. LEXIS 110 (Tenn. Ct. App. Feb. 12, 2016).

Wife's request for attorney's fees on appeal was denied because an estate's appeal was not frivolous or completely devoid of merit. In re Estate of Lewis, — S.W.3d —, 2016 Tenn. App. LEXIS 120 (Tenn. Ct. App. Feb. 18, 2016).

Because a mother's appeal of a judgment terminating her parental rights to her child was not frivolous, the appellate court declined to award the child's paternal grandparents their attorney fees incurred on appeal and costs. In re Trenton W., — S.W.3d —, 2016 Tenn. App. LEXIS 378 (Tenn. Ct. App. May 31, 2016).

Although the court ruled adversely to the husband concerning the issues he raised, his appeal was not devoid of merit, and the appeal was not found to be frivolous. Collins v. Collins, — S.W.3d —, 2016 Tenn. App. LEXIS 551 (Tenn. Ct. App. Aug. 1, 2016).

Real estate investors'  request to find mortgagors'  appeal frivolous was denied because the appeal was not so entirely devoid of merit as to warrant a finding that it was frivolous. Alfonso v. Bailey, — S.W.3d —, 2016 Tenn. App. LEXIS 569 (Tenn. Ct. App. Aug. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 951 (Tenn. Dec. 14, 2016).

Given the husband's request for review of the sanction imposed by the trial court, the appeal was not frivolous or taken solely for delay, and thus the wife's request for attorney fees was denied. Parvin v. Newman, 518 S.W.3d 298, 2016 Tenn. App. LEXIS 945 (Tenn. Ct. App. Dec. 9, 2016).

Brothers were denied damages for the expenses they incurred as a result of an aunt's appeal because the appeal was not frivolous as the aunt prevailed on one of her issues. Breen v. Sharp, — S.W.3d —, 2017 Tenn. App. LEXIS 742 (Tenn. Ct. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 182 (Tenn. Mar. 15, 2018).

Because an appeal was not frivolous or taken solely for delay, the court of appeals declined to award attorney's fees to an estate as damages. In re Estate of Shell, — S.W.3d —, 2018 Tenn. App. LEXIS 505 (Tenn. Ct. App. Aug. 29, 2018).

When an appellate court ruled in favor of the appellant in an appeal on the issue of res judicata, given that partial victory, the court could not say that the appeal from an order dismissing the appeal for failure to state a claim was entirely devoid of merit. Accordingly, the court, in the exercise of its discretion, declined to deem the appeal frivolous and denied the appellee's request for damages. Khan v. Regions Bank, — S.W.3d —, 2018 Tenn. App. LEXIS 560 (Tenn. Ct. App. Sept. 24, 2018).

While the appeal in this termination of parental rights case was a frustration of the child's need for permanency and stability, the court did not wish to discourage future legitimate appeals, especially in cases involving a decision concerning parental rights, and thus the request to deem the father's appeal frivolous was denied. In re Kaycee M., — S.W.3d —, 2018 Tenn. App. LEXIS 585 (Tenn. Ct. App. Oct. 3, 2018).

Wife's appeal was not frivolous because although the wife did not prevail with regard to her issue on child support, she did prevail with regard to her the other issue she raised. Miller v. Miller, — S.W.3d —, 2019 Tenn. App. LEXIS 166 (Tenn. Ct. App. Apr. 4, 2019).

Court of appeals declined to exercise its discretion to award damages to a decedent's daughter and her husband because a widower's appeal was not devoid of merit and was not taken solely for delay; the judgment of the trial court dismissing the widower's partition action was vacated and remanded. Love v. McDowell, — S.W.3d —, 2019 Tenn. App. LEXIS 414 (Tenn. Ct. App. Aug. 26, 2019).

5. Attorney Fees Denied.

Although an appellate court resolved an appeal by the executor of an estate in favor of the beneficiaries of the estate, the appellate court declined to award the beneficiaries attorney's fees because the court was not persuaded that the appeal was completely devoid of merit. In re Estate of McMillin, — S.W.3d —, 2015 Tenn. App. LEXIS 69 (Tenn. Ct. App. Feb. 12, 2015).

Appellate court chose to deny a personal guarantor's request for attorney's fees because an appeal was not so devoid of merit as to warrant an award of fees to the personal guarantor. Amresco Independence Funding, LLC v. Renegade Mt. Golf Club, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 170 (Tenn. Ct. App. Mar. 31, 2015).

Exercising discretion, the request for fees on appeal was denied where the conservator had requested attorneys fees for a period of time during which the ward was not living and the trial court had only approved fees that it determined were “reasonable and necessary” and expended on behalf of the ward.In re Melton, — S.W.3d —, 2015 Tenn. App. LEXIS 621 (Tenn. Ct. App. July 31, 2015), appeal dismissed, In re Conservatorship of Melton, — S.W.3d —, 2016 Tenn. LEXIS 203 (Tenn. Mar. 23, 2016).

Appellee bank's request for recovery of attorney fees and costs under this section was presented in the argument section of its brief, but it was not presented as an issue for appellate review in compliance with Tenn. R. App. P. 27(a)(4). As such, the issue was waived, and the appellate court declined to award fees. Ave. Bank v. Guar. Ins. Co., — S.W.3d —, 2015 Tenn. App. LEXIS 820 (Tenn. Ct. App. Oct. 6, 2015).

Appellate court declined to award appellate fees to a parent because the court did not conclude that the appeal by the other parent of an award by a trial court ordering the other parent to pay uncovered medical expenses of the parties'  children was devoid of merit or that it was undertaken for delay. Eberbach v. Eberbach, — S.W.3d —, 2015 Tenn. App. LEXIS 872 (Tenn. Ct. App. Oct. 23, 2015), rev'd, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

Request for attorney fees on appeal was denied. Draper v. Draper, — S.W.3d —, 2015 Tenn. App. LEXIS 905 (Tenn. Ct. App. Nov. 15, 2015).

City's request for costs and attorney's fees on appeal was denied because an employee was successful on appeal, and the appeal was not frivolous or taken solely for delay. Fitten v. City Council of Chattanooga, — S.W.3d —, 2016 Tenn. App. LEXIS 119 (Tenn. Ct. App. Feb. 18, 2016).

Father's request that the mother pay his attorney fees pursuant to T.C.A. § 27-1-122 was rejected where her appeal of the finding that she was voluntarily underemployed for purposes of calculating child support was not a frivolous appeal. Cocke v. Cocke, — S.W.3d —, 2016 Tenn. App. LEXIS 267 (Tenn. Ct. App. Apr. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 679 (Tenn. Sept. 23, 2016).

In a case relating to the distribution of a marital estate, attorney's fees were not awarded on appeal because the appellate court was unable to conclude that the appeal was frivolous, or that the appeal was taken for any subversive purpose. Greer v. Cobble, — S.W.3d —, 2016 Tenn. App. LEXIS 324 (Tenn. Ct. App. May 11, 2016).

Appellate court, in exercising its discretion in a child custody dispute between a parent and a grandparent, could not say that the grandparent's appeal was frivolous or was taken solely for delay. Accordingly, the court respectfully declined to award the parent any attorney's fees related to the cost of the appeal. Bryan v. Miller, — S.W.3d —, 2016 Tenn. App. LEXIS 568 (Tenn. Ct. App. Aug. 8, 2016).

Denial of appellees'  request for attorney's fees on appeal was appropriate because the appellate court determined that the appeal was not frivolous or taken solely for delay, particularly considering the appellant's partial success on appeal. Logan v. Estate of Cannon, — S.W.3d —, 2016 Tenn. App. LEXIS 708 (Tenn. Ct. App. Sept. 23, 2016).

Guardian ad litem was denied attorney's fees on appeal because a mother's appeal was not devoid of merit or undertaken for delay. In re Jackson H., — S.W.3d —, 2016 Tenn. App. LEXIS 811 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 101 (Tenn. Feb. 15, 2017).

Appeal was not frivolous or taken solely for delay, and thus requests for attorney fees on appeal were denied. Buckner v. Goodman, — S.W.3d —, 2016 Tenn. App. LEXIS 999 (Tenn. Ct. App. Dec. 29, 2016).

Although appellants unsuccessfully filed suit to assert rights to a tract of real property by adverse possession, the appellate court declined to award appellee attorney fees pursuant to Tenn. Code § 27-1-122, where appellee's request for recovery was not presented as an issue for the appellate court's review in compliance with Tenn. R. App. P. 27. Phelps v. Benke, — S.W.3d —, 2017 Tenn. App. LEXIS 18 (Tenn. Ct. App. Jan. 11, 2017).

Court of appeals erred in failing to address a wife's request for appellate attorney's fees under a marital dissolution agreement (MDA) and in exclusively reviewing her request for fees under the statute because the wife was the prevailing party at both the trial and appellate levels, and the MDA entitled her to a judgment for reasonable expenses, including attorney's fees, incurred in prosecuting the action in each of the proceedings. Eberbach v. Eberbach, — S.W.3d —, 2017 Tenn. LEXIS 281 (Tenn. May 23, 2017).

Award of attorney's fees under T.C.A. § 27-1-122 was inappropriate where although the appeal was not resolved in appellant's favor, the appellate court was unable to conclude that the appeal was devoid of merit. Town & Country Jewelers, Inc. v. Trotter, — S.W.3d —, 2017 Tenn. App. LEXIS 506 (Tenn. Ct. App. July 27, 2017), appeal denied, Town & Country Jewelers Inc. v. Trotter, — S.W.3d —, 2017 Tenn. LEXIS 838 (Tenn. Nov. 21, 2017).

Wife was denied the attorney's fees she incurred on appeal because she was not entitled to an additional award of attorney's fees on appeal based on a postnuptial agreement. Pandey v. Pandey, — S.W.3d —, 2017 Tenn. App. LEXIS 692 (Tenn. Ct. App. Oct. 16, 2017).

Wife's request for attorney's fees on appeal was denied because the husband's appeal was not frivolous, and there was no evidence that the appeal was taken solely for delay. Vlach v. Vlach, — S.W.3d —, 2017 Tenn. App. LEXIS 717 (Tenn. Ct. App. Oct. 27, 2017).

Contestants'  request for attorney's fees and costs on appeal were denied because proponents'  appeal was not frivolous or taken solely for delay. In re Estate of Morris, — S.W.3d —, 2017 Tenn. App. LEXIS 741 (Tenn. Ct. App. Nov. 13, 2017).

Court of appeals declined to award a mother her attorney's fees because a putative father's appeal was not devoid of merit or taken solely for delay. In re Michael J., — S.W.3d —, 2018 Tenn. App. LEXIS 52 (Tenn. Ct. App. Jan. 31, 2018).

Husband was successful in his appeal, and the appeal was not frivolous or taken solely for delay, such that the wife's request for attorney fees under T.C.A. § 27-1-122 was denied. Wilhoit v. Wilhoit, — S.W.3d —, 2018 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 16, 2018).

Appeal was not devoid of merit, nor was it taken solely for delay, and thus the mother's request for fees under T.C.A. § 27-1-122 was denied. In re Britton H-S, — S.W.3d —, 2018 Tenn. App. LEXIS 101 (Tenn. Ct. App. Feb. 23, 2018).

Court of appeals exercised its discretion to deny an award of attorney's fees on appeal because although a beneficiary's brief lacked specificity in many areas, the appeal was not frivolous or taken solely for delay; substantial attorney's fees had been awarded from the estate, with the result that the estate was exhausted. In re Estate of Storey, — S.W.3d —, 2018 Tenn. App. LEXIS 121 (Tenn. Ct. App. Mar. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 469 (Tenn. July 19, 2018).

Chef's request for fees pursuant to the statute was denied because the court of appeals declined to find that the appeal of the former director of a culinary program was frivolous. Loftis v. Rayburn, — S.W.3d —, 2018 Tenn. App. LEXIS 201 (Tenn. Ct. App. Apr. 20, 2018).

Appellee was not entitled to an award of attorney's fees under the frivolous appeal statute because the appellate court did not find the appeal to be so devoid of merit that it warranted the award of damages. Rich v. Rich, — S.W.3d —, 2018 Tenn. App. LEXIS 229 (Tenn. Ct. App. Apr. 27, 2018).

Appeal was not so utterly devoid of merit that it warranted an award of damages, and the husband's request for attorney fees was denied. Yarbrough v. Yarbrough, — S.W.3d —, 2018 Tenn. App. LEXIS 259 (Tenn. Ct. App. May 11, 2018).

Although the husband was not successful with regard to the issues he raised, his appeal was not so devoid of merit as to warrant an award of attorney's fees to the wife. Disterdick v. Disterdick, — S.W.3d —, 2018 Tenn. App. LEXIS 325 (Tenn. Ct. App. June 18, 2018).

Request for attorney fees was denied; although only one ground was necessary to support termination of parental rights and one was established, it could not be said that the father's argument regarding the best interest of the child was so utterly devoid of merit as to have been frivolous. In re Kylea K., — S.W.3d —, 2018 Tenn. App. LEXIS 338 (Tenn. Ct. App. June 21, 2018).

In deference to the circuit court's discretion, the appellate court affirmed the circuit court's failure to award attorney fees to a father. Exercising its own discretion, the appellate court denied any fees on appeal to the father. In re Maya M., — S.W.3d —, 2018 Tenn. App. LEXIS 395 (Tenn. Ct. App. July 9, 2018).

Husband's request for attorney's fees incurred on appeal was denied as the wife's appeal was not so devoid of merit as to be frivolous under T.C.A. § 27-1-122, and case law concluded that attorney's fees were not available under former T.C.A. § 36-5-103(c) (amended 2018). Odom v. Odom, — S.W.3d —, 2018 Tenn. App. LEXIS 419 (Tenn. Ct. App. July 23, 2018).

When a mother unsuccessfully sought modification of a primary residential parent and a residential parenting schedule, the father was not entitled to appellate attorney's fees because the appeal was not frivolous, and the record did not indicate the appeal was brought for purposes of delay. Null v. Cummins, — S.W.3d —, 2018 Tenn. App. LEXIS 480 (Tenn. Ct. App. Aug. 17, 2018).

While the trustees did not prevail, their argument was not completely without merit, and thus the court declined to award attorney's fees for a frivolous appeal. In re Farmer Family Trust, — S.W.3d —, 2018 Tenn. App. LEXIS 598 (Tenn. Ct. App. Oct. 11, 2018).

Appeal was not frivolous and not taken solely for delay, and thus the request for fees was denied. Kendle v. Kendle, — S.W.3d —, 2018 Tenn. App. LEXIS 610 (Tenn. Ct. App. Oct. 18, 2018).

Because the husband's appeal was not so devoid of merit as to be characterized as frivolous, the appellate court declined the wife's request for attorney fees and costs in defense of the appeal. Larsen v. Giannakoulias, — S.W.3d —, 2018 Tenn. App. LEXIS 627 (Tenn. Ct. App. Oct. 26, 2018).

As the appeal in this divorce and custody case was not frivolous and not taken solely for delay, the father's request for fees was denied. King v. Daily, — S.W.3d —, 2018 Tenn. App. LEXIS 699 (Tenn. Ct. App. Nov. 30, 2018).

Father was successful in overturning the trial court's decision to award the costs of a parental evaluation as a medical expense of the children. As such, the appellate court declined to award attorney fees under this section. Brunetz v. Brunetz, — S.W.3d —, 2019 Tenn. App. LEXIS 119 (Tenn. Ct. App. Mar. 8, 2019).

Appeal was not found to be devoid of merit or taken solely for delay, and thus attorney fees on this basis were denied. New v. Dumitrache, — S.W.3d —, 2019 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 12, 2019).

Court did not find that this appeal was frivolous or taken solely for delay, and thus the request for attorney fees under the statute was declined. Holleman v. Holleman, — S.W.3d —, 2019 Tenn. App. LEXIS 274 (Tenn. Ct. App. May 30, 2019).

Court did not find the appeal to be frivolous, and thus the request for attorney fees was denied. Harris Bldg. Group, Inc. v. Tenn. Elec., Inc., — S.W.3d —, 2019 Tenn. App. LEXIS 293 (Tenn. Ct. App. June 10, 2019).

Court of appeals exercised its discretion to deny a former wife's request for appellate attorney's fees because the former husband's appeal was not frivolous or taken solely for delay. Neamtu v. Neamtu, — S.W.3d —, 2019 Tenn. App. LEXIS 332 (Tenn. Ct. App. July 2, 2019).

Court of appeals denied a husband's request for attorney's fees and expenses incurred on appeal because it did not find the wife's appeal to be frivolous. Odom v. Odom, — S.W.3d —, 2019 Tenn. App. LEXIS 378 (Tenn. Ct. App. Aug. 5, 2019).

Appellants lost 30 acres of farmland because they were unable to pay a judgment, and thus the court declined to exercise its discretion to award further damages to appellee in this appeal. Sklar v. Clancy, — S.W.3d —, 2019 Tenn. App. LEXIS 486 (Tenn. Ct. App. Oct. 2, 2019).

Father was not entitled to an award of attorney's fees and damages incurred as a result of a mother's allegedly frivolous appeal because the father's appellate brief's statement of issues did not properly raise the matter, waiving it. Blakney v. White, — S.W.3d —, 2019 Tenn. App. LEXIS 498 (Tenn. Ct. App. Oct. 8, 2019).

Mother and stepfather were not entitled to an award of attorney's fees on appeal in a termination of parental rights case because the father's appeal was not frivolous as the termination of the father's parental rights was reversed on appeal. In re Mattie L., — S.W.3d —, 2020 Tenn. App. LEXIS 152 (Tenn. Ct. App. Apr. 14, 2020).

Although mother prevailed in this appeal, the father's appeal was not frivolous or taken solely for delay, so fees were denied. Napier v. Napier, — S.W.3d —, 2020 Tenn. App. LEXIS 332 (Tenn. Ct. App. July 27, 2020).

Because the appeal was not frivolous or taken solely for delay, the court denied intervenors'  request for attorney fees on appeal. Druek v. Hydrogen Engine Ctr., Inc., — S.W.3d —, 2020 Tenn. App. LEXIS 481 (Tenn. Ct. App. Oct. 30, 2020).

6. Attorney Fees Granted.

Because a parent was forced to respond to the other parent's issues for review, despite the other parent's waiver of such issues due to deficient briefing, the parent was entitled to frivolous appeal damages for the parent's expenses incurred responding to these waived issues. On remand, the trial court was to evaluate the parent's fees incurred responding to the waived issues. Coleman v. Coleman, — S.W.3d —, 2015 Tenn. App. LEXIS 59 (Tenn. Ct. App. Feb. 4, 2015).

Because the 2014 complaint of the former member of the law firm was barred by res judicata, the former member's appeal was frivolous, as it was devoid of merit and had no reasonable chance of success, and the appellate court exercised its discretion to award the law firm the reasonable attorneys'  fees and expenses it incurred on appeal. Hippe v. Miller & Martin, PLLC, — S.W.3d —, 2015 Tenn. App. LEXIS 322 (Tenn. Ct. App. May 12, 2015), appeal denied, Hippe v. Miller & Martin, PLLC, — S.W.3d —, 2015 Tenn. LEXIS 791 (Tenn. Sept. 16, 2015).

Daughter was entitled to the attorney's fees on appeal because the parents'  appeal was frivolous where they knew or should have known their appeal had no prospect of success once the corporation was liquidated and they did not seek to stay the dissolution, request an expedited briefing schedule, or other available relief. Judd v. Guye, — S.W.3d —, 2015 Tenn. App. LEXIS 981 (Tenn. Ct. App. Dec. 21, 2015).

Trustee's appeal was not frivolous or taken solely for delay, but an award of attorney's fees on appeal was appropriate based on the trustee's breach of her fiduciary duty as trustee of the beneficiaries'  respective trusts; even assuming the trustee gave notice to the beneficiares of her intention to withdraw trust monies to pay legal expenses, such notice without their authorization or a court order did not constitute legal grounds for the trustee to reimburse herself from the trust accounts. George v. Dunn, — S.W.3d —, 2016 Tenn. App. LEXIS 823 (Tenn. Ct. App. Nov. 2, 2016).

Trial court properly formulated a parenting plan because, while most of the statutory factors weighed in favor of both parents equally, several factors favored the mother, and no factors favored the father, the trial court's decision to deviate from the agreed permanent parenting plan was reasonable, the version that was finally approved by the trial court was consistent with the father's proposal, requiring parents who precipitated custody or support proceeding to underwrite the costs if their claims were ultimately found to be unwarranted was appropriate as a matter of policy, and the mother was entitled to recover the reasonable and necessary attorney's fees she incurred on appeal. Kincade v. Kincade, — S.W.3d —, 2018 Tenn. App. LEXIS 173 (Tenn. Ct. App. Apr. 4, 2018).

Appellee was entitled to the appellee's request for frivolous appeal damages because the appeal by the appellant had no reasonable chance of success. Remand for determination of reasonable attorney's fees and costs was, therefore, appropriate. Rummage v. Rummage, — S.W.3d —, 2018 Tenn. App. LEXIS 253 (Tenn. Ct. App. May 9, 2018).

Because appellant failed to provide the appellate court with a record that would allow it to review the trial court's findings, the appeal had no prospect of succeeding; therefore, the appeal was frivolous, and appellees were awarded attorney fees on appeal. Clark v. Owens, — S.W.3d —, 2019 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 8, 2019).

Grandmother failed to present any factual allegations or legal argument that would create any possibility that she would prevail in the appellate court, and thus the court exercised its discretion to award the mother, cousin, and guardian ad litem their reasonable attorney's fees and costs on appeal. In re Cassi J., — S.W.3d —, 2020 Tenn. App. LEXIS 258 (Tenn. Ct. App. June 2, 2020).

Based on the evidence presented during trial and the trial court's finding that the husband was not credible, the husband's appeal had little prospect of success and, therefore, the appeal was frivolous and the wife was entitled to attorney's fees on appeal. Dailey v. Dailey, — S.W.3d —, 2020 Tenn. App. LEXIS 313 (Tenn. Ct. App. July 13, 2020).

NOTES TO DECISIONS

1. Waiver.

The notice of appeal can be waived in the interest of justice in criminal cases without regard to whether it is the defendant or the state seeking waiver. State v. Burrow, 769 S.W.2d 510, 1989 Tenn. Crim. App. LEXIS 208 (Tenn. Crim. App. 1989).

Timely filing of a notice of appeal was waived because the appellate court had remanded the case to the post-conviction court for findings regarding whether the petitioner should be allowed to proceed pro se or whether counsel should be appointed, resulting in the nine-month delay. State v. McGaha, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Dec. 7, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 280 (Tenn. Apr. 11, 2012), cert. denied, McGaha v. Tennessee, 184 L. Ed. 2d 181, 133 S. Ct. 306, 568 U.S. 900, 2012 U.S. LEXIS 6672 (U.S. 2012).

NOTES TO DECISIONS

1. Constitutionality.

This statute is constitutional. Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890); Louisville & N. R. Co. v. Woodson, 134 U.S. 614, 10 S. Ct. 628, 33 L. Ed. 1032, 1890 U.S. LEXIS 2000 (1890).

2. Purpose.

This section was intended to limit the power of courts over findings of fact by a jury upon regular proceedings and a correct charge. Louisville & N. R. Co. v. Woodson, 134 U.S. 614, 10 S. Ct. 628, 33 L. Ed. 1032, 1890 U.S. LEXIS 2000 (1890).

3. Appellate Courts — Extent Covered.

This section applies to the appellate court, which only renders the judgment that the court below should have rendered. Knoxville Iron Co. v. Dobson, 83 Tenn. 409, 1885 Tenn. LEXIS 60 (1885); Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890).

4. Application — Exceptions.

Malone's Lessee v. De Boe, 5 Tenn. 259, 1817 Tenn. LEXIS 112 (1817); Trott v. West, Moss & Co., 18 Tenn. 499, 1837 Tenn. LEXIS 67 (1837); Trott v. West, Moss & Co., 19 Tenn. 163, 1838 Tenn. LEXIS 40 (1838); Turner v. Ross, 20 Tenn. 16, 1839 Tenn. LEXIS 2 (1839); Ferrell v. Alder, 32 Tenn. 77, 1852 Tenn. LEXIS 18 (1852); East T. & G. R. Co. v. Hackney, 38 Tenn. 169, 1858 Tenn. LEXIS 153 (1858); Whitemore v. Haroldson, 70 Tenn. 312, 1879 Tenn. LEXIS 235 (1879); Burton v. Gray, Kirkman & Co., 78 Tenn. 580, 1882 Tenn. LEXIS 227 (1882); Knoxville Iron Co. v. Dobson, 83 Tenn. 409, 1885 Tenn. LEXIS 60 (1885); Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890); Louisville & N. R. Co. v. Woodson, 134 U.S. 614, 10 S. Ct. 628, 33 L. Ed. 1032, 1890 U.S. LEXIS 2000 (1890); Railroad v. Green, 100 Tenn. 238, 47 S.W. 221, 1897 Tenn. LEXIS 106 (1897); Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 140 S.W. 1066, 1911 Tenn. LEXIS 12 (Tenn. Sep. 1911); Brenizer v. Nashville, C. & S. L. Ry, 156 Tenn. 479, 3 S.W.2d 1053, 1927 Tenn. LEXIS 144 (1928).

Where the facts of the case have been fairly left to the jury, upon a proper charge of the court, and they have twice found a verdict for the same party, each of which was set aside by the court, and the same party shall obtain another verdict in like manner supported by any evidence, it shall not be disturbed. Trott v. West, Moss & Co., 18 Tenn. 499, 1837 Tenn. LEXIS 67 (1837); Trott v. West, Moss & Co., 19 Tenn. 163, 1838 Tenn. LEXIS 40 (1838).

This section did not apply where verdict of jury in first two trials was more than that demanded in complaint and on the third trial there were only 11 jurors. Wilson v. Greer, 26 Tenn. 513, 1847 Tenn. LEXIS 8 (1847).

A third verdict or any number of verdicts may be set aside and new trials granted for errors in the charge, improper admission or rejection of evidence, or for misconduct of the jury, and the like, if stated upon the record. East T. & G. R. Co. v. Hackney, 38 Tenn. 169, 1858 Tenn. LEXIS 153 (1858); Whitemore v. Haroldson, 70 Tenn. 312, 1879 Tenn. LEXIS 235 (1879); Burton v. Gray, Kirkman & Co., 78 Tenn. 580, 1882 Tenn. LEXIS 227 (1882); Louisville & N. R. Co. v. Woodson, 134 U.S. 614, 10 S. Ct. 628, 33 L. Ed. 1032, 1890 U.S. LEXIS 2000 (1890).

This section has no application to a case where there is no evidence to support the verdict, and, in such case, the trial judge may set aside the third verdict or any subsequent verdict in the same case, and upon motion of the same party. Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890); Railroad v. Green, 100 Tenn. 238, 47 S.W. 221, 1897 Tenn. LEXIS 106 (1897); Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 140 S.W. 1066, 1911 Tenn. LEXIS 12 (Tenn. Sep. 1911); American Union Ins. Co. v. Horton, 15 Tenn. App. 176, 1932 Tenn. App. LEXIS 85 (1932).

This statute does not apply where one of the two preceding verdicts was set aside for surprise on account of the introduction of the testimony of a witness. Railroad v. Blair, 104 Tenn. 212, 55 S.W. 154, 1899 Tenn. LEXIS 29 (1899).

5. No Evidence to Support Verdict.

The contention that there is no evidence to sustain the verdict cannot be successfully maintained “if the conclusion does not follow, as a matter of law, that no recovery can be had upon any view which can be properly taken of the fact the evidence tends to establish.” Railway Co. V. Mahoney, 89 Tenn. 311, 15 S.W. 652, 1890 Tenn. LEXIS 54 (1890).

6. Disregard of Court's Charge.

Refusal of the jury to regard the court's charges is not such misconduct as entitles the trial judge to grant more than two trials. Burton v. Gray, Kirkman & Co., 78 Tenn. 580, 1882 Tenn. LEXIS 227 (1882).

Entry on grant of a new trial that “the jury disobeyed the instructions and the verdict is against the preponderance of the evidence” shows the court's action to have been on the facts, and grant of a third new trial is precluded. Railroad v. Green, 100 Tenn. 238, 47 S.W. 221, 1897 Tenn. LEXIS 106 (1897).

7. Presumption and Burden of Proof.

The conclusive presumption is that the verdict was set aside, and a new trial granted, for insufficiency of the evidence, unless the record itself shows that it was done for some one of the excepted causes; and the party who seeks to sustain the action of the court in setting aside a third verdict must be able to show from the record itself that the new trials were granted for one or more of the following causes: error in charge of court, in admission or rejection of testimony, or misconduct of the jury, and the like. Ferrell v. Alder, 32 Tenn. 77, 1852 Tenn. LEXIS 18 (1852); Railroad v. Green, 100 Tenn. 238, 47 S.W. 221, 1897 Tenn. LEXIS 106 (1897); Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 140 S.W. 1066, 1911 Tenn. LEXIS 12 (Tenn. Sep. 1911).

8. Amendments.

The fact that new counts, which vary the form but do not change the cause of action, have been added to the declaration after two new trials have been granted, will not affect the operation of the law denying a third new trial. East T. & G. R. Co. v. Hackney, 38 Tenn. 169, 1858 Tenn. LEXIS 153 (1858).

NOTES TO DECISIONS

1. Appeal and Appeal in Error — Effect Distinguished.

A broad appeal from the county court to the circuit court gives a trial of the whole case de novo in the circuit court; but an appeal in error entitles the appellant to a review of the case as tried in the county court. M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833).

2. Appeal to Circuit Court.

Where widow excepted from action of county court in confirming report of commissioners under which year's support had been set apart from husband's estate, and appealed in error directly to court of appeals when motion for new trial was overruled, court of appeals had jurisdiction of appeal inasmuch as widow and executor consented of record that appeal be taken directly from circuit court. Redmon v. Fuller, 23 Tenn. App. 623, 136 S.W.2d 724, 1939 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1939), superseded by statute as stated in, In re Estate of Truett, — S.W.2d —, 1997 Tenn. App. LEXIS 230 (Tenn. Ct. App. Apr. 7, 1997).

The circuit court had jurisdiction to entertain an appeal from the judgment of the county court sustaining the action of the clerk of the county court (now county clerk) in refusing to accept or file a suggestion of insolvency tendered by the creditor of an estate. Motlow Milling Co. v. Warterfield, 178 Tenn. 634, 162 S.W.2d 378, 1942 Tenn. LEXIS 2 (1942).

Section 27-4-108 does not require that all appeals from the county court to the circuit court except jury cases and chancery cases be reviewed as appeals in the nature of writs of error are reviewed rather than as appeals, which afford de novo hearings in the circuit court. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977), rejecting dictum in Griffitts v. Rockford Utility Dist., 41 Tenn. App. 653, 298 S.W.2d 33, 1956 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1956).

3. Appeal to Court of Appeals.

Where the jurisdiction of the county court is exclusive, the general rule is that appeals therefrom lie to the circuit court, but, by consent of both parties, appearing of record, the appeal may be taken direct to the court of appeals. Redmon v. Fuller, 23 Tenn. App. 623, 136 S.W.2d 724, 1939 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1939), superseded by statute as stated in, In re Estate of Truett, — S.W.2d —, 1997 Tenn. App. LEXIS 230 (Tenn. Ct. App. Apr. 7, 1997).

NOTES TO DECISIONS

1. Construction.

This section and Rule 24 of the Tennessee Rules of Appellate Procedure are geared toward a correction of the record, rather than a remand after reversal of the trial court. First Tennessee Bank Nat'l Ass'n v. Hurd Lock & Mfg. Co., 816 S.W.2d 38, 1991 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 345 (Tenn. Sept. 3, 1991).

2. Applicability.

Where the record did not include any factual findings or legal conclusions detailing the basis for the trial court's award to a contractor, the case was remanded for findings of fact and conclusions of law sufficient for the appellate court to ascertain the basis for trial court's calculation of its award to the contractor in the suit brought against homeowners for whom he had been constructing a house. John Allen Constr., LLC v. Hancock, — S.W.3d —, 2006 Tenn. App. LEXIS 149 (Tenn. Ct. App. Mar. 1, 2006).

In a case in which the father appealed the juvenile court's legitimation of his child and direction that its surname be changed to a hyphenation of the mother's maiden name and the father's surname, the appellate court had to apply T.C.A. § 27-3-128 in order to do justice and it remanded the case to the juvenile court for it to supplement the record with its subsequent order granting custody to the father and proof and findings as to what the child's surname should have been in light of the child's best interest and the Barbas v. Rogers, 868 S.W.2d 283, factors. Christ v. Homonai, — S.W.3d —, 2006 Tenn. App. LEXIS 606 (Tenn. Ct. App. Sept. 14, 2006).

An appellate court remanded the father's appeal from the trial court's increase in his child support back to the trial court pursuant to T.C.A. § 27-3-128 because it was unclear from the record what the father's obligations to his other children were. Hill v. Triplett, — S.W.3d —, 2006 Tenn. App. LEXIS 668 (Tenn. Ct. App. Oct. 12, 2006).

Case was remanded to trial court because its oral ruling awarding damages to a property owner of $20,000 for damage to a carport appeared to be internally inconsistent and the appellate court could not determine whether the trial court's decision was the result of a mistake or whether in light of the evidence before it, it made findings not expressly stated in its oral ruling. Carson v. Waste Connections of Tennessee, Inc., — S.W.3d —, 2007 Tenn. App. LEXIS 259 (Tenn. Ct. App. Apr. 27, 2007).

Order denying a motion to set aside a default judgment on the ground that the actions or inactions of a lawyer were attributable to a restauranteur's son was vacated and remanded for further proceedings, because the record failed to provide an adequate basis for reliably determining the nature of the relationship between the son and the lawyer under T.C.A. § 27-3-128. World Relief Corp. v. Messay, — S.W.3d —, 2007 Tenn. App. LEXIS 481 (Tenn. Ct. App. July 26, 2007).

Where a neighbor made improvements to a property owner's land, there was an implied contract in law because the property owner should have known that the neighbor would have expected some compensation for the work; however, remand was necessary because the proper award would be providing a quantum meruit award based upon the reasonable value of the neighbor's services, rather than the increased value of the property. Williams v. Coffey, — S.W.3d —, 2008 Tenn. App. LEXIS 231 (Tenn. Ct. App. Apr. 21, 2008).

Although a neighbor appealed a chancery court's decision finding a prescriptive easement in favor of landowners, the appellate court remanded the matter, pursuant to T.C.A. § 27-3-128, for preparation of a proper statement of the evidence because the statement of the evidence presented to the appellate court was prepared by the neighbor, reflected no evidence bearing on the elements of an easement, and only presented evidence in favor of the neighbor. Mullins v. Locke, — S.W.3d —, 2012 Tenn. App. LEXIS 489 (Tenn. Ct. App. July 24, 2012).

Case was remanded for the trial court to consider further evidence regarding whether the depreciation on the commercial property was properly deducted from the father's income, for child support purposes. Hall v. Hall, — S.W.3d —, 2014 Tenn. App. LEXIS 492 (Tenn. Ct. App. Aug. 14, 2014).

3. Limitations upon Remands.

Neither the trial judge nor the court of appeals has authority to expand the limitation placed by the supreme court upon a remand. Cook v. McCullough, 735 S.W.2d 464, 1987 Tenn. App. LEXIS 3181 (Tenn. Ct. App. 1987).

This section does not authorize courts to indulge piecemeal and protracted litigation concerning facts that should have obviously been established at the original trial. Killian v. Campbell, 760 S.W.2d 218, 1988 Tenn. App. LEXIS 476 (Tenn. Ct. App. 1988).

Plaintiff's failure to attempt to prove damages was not a mere “oversight without culpable negligence.” Killian v. Campbell, 760 S.W.2d 218, 1988 Tenn. App. LEXIS 476 (Tenn. Ct. App. 1988).

Unlike an order of remand following reversal or an order under T.C.A. § 27-3-128 instructing the trial court to conduct further proceedings with respect to a specific issue, the appellate court's 2003 order directed the trial court to include a holding on the parishioner's assault claim based on evidence presented at the 2001 trial. Ruff v. Raleigh Assembly of God Church, — S.W.3d —, 2007 Tenn. App. LEXIS 385 (Tenn. Ct. App. June 21, 2007), superseded, Ruff v. Raleigh Assembly of God Church, 241 S.W.3d 876, 2007 Tenn. App. LEXIS 457 (Tenn. Ct. App. July 23, 2007).

On remand, the trial court was not required to permit a parishioner to conduct additional discovery and to hold a new trial or evidentiary hearing with respect to his assault claim against the church, as the appellate court had directed the trial court to correct its order by specifically including a holding on the assault claim based on the evidence presented at previous trial; nothing further was required by the trial court. Ruff v. Raleigh Assembly of God Church, 241 S.W.3d 876, 2007 Tenn. App. LEXIS 457 (Tenn. Ct. App. July 23, 2007), appeal denied, Ruff v. Raleigh Assembly of God Church, Inc., — S.W.3d —, 2007 Tenn. LEXIS 1050 (Tenn. Nov. 19, 2007).

NOTES TO DECISIONS

1. Waiver of Right to Jury Trial.

Where defendant had not waived his right to a trial by jury in writing in the general sessions court, he still did not waive his right to a jury trial by his failure to demand a jury trial at the time of his appeal to the criminal court. State v. Jarnigan, 958 S.W.2d 135, 1997 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. 1997).

NOTES TO DECISIONS

1. Construction.

The provision for an appeal by “any person dissatisfied” did not mean that one without interest in the subject matter, and one not aggrieved or prejudiced by the decree was entitled to an appeal. A bachelor brother was not, by reason of his contingent expectancy of inheritance, one who might appeal from a judgment after inquisition of lunacy finding that his brother was not of unsound mind. Harmon v. Harmon, 141 Tenn. 64, 206 S.W. 333, 1918 Tenn. LEXIS 68 (1918).

2. Prerequisites to Appeal — Final Judgment.

This statute, construed in reference to the existing law, means that appeal lies from a final sentence, judgment, or decree. Rutherford v. Richardson, 33 Tenn. 609, 1854 Tenn. LEXIS 76 (1854); Payne v. Satterfield, 114 Tenn. 58, 84 S.W. 800, 1904 Tenn. LEXIS 70 (1904).

Action of county court in assessing taxes is not a judgment or decree. Keely v. Haywood County, 1 Shan. 610 (1876).

3. Appeal of Particular Causes.

4. —Lunacy Hearings.

In case of inquisition of lunacy, an appeal lies from county court to circuit court. One against whom there has been a judgment of lunacy may appeal. Cooper v. Summers, 33 Tenn. 453, 1853 Tenn. LEXIS 71 (1853); Harmon v. Harmon, 141 Tenn. 64, 206 S.W. 333, 1918 Tenn. LEXIS 68 (1918).

Where an adjudication of insanity had been made by the county court, jurisdiction to restore such defendant to competency was vested exclusively in the county court so that an appeal from proceedings should have been to the circuit court rather than to the Court of Appeals. Bradford v. Ragsdale, 174 Tenn. 450, 126 S.W.2d 327, 1938 Tenn. LEXIS 111, 121 A.L.R. 1506 (1939).

5. —Suspension of Officer.

If the removed or suspended constable is dissatisfied with the action of the county court, he may appeal, or if the appeal be refused, he may have a certiorari, and have the matter retried in the circuit court; or he may file his bill of exceptions, and set forth the evidence upon which the judgment was given upon the record, and then take a writ of error. Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Gwin v. Vanzant, 15 Tenn. 142, 15 Tenn. 143, 1834 Tenn. LEXIS 28 (1834) (removed guardian); Dodd v. Weaver, 34 Tenn. 670, 1855 Tenn. LEXIS 116 (1855).

6. —Insolvency Proceedings.

The circuit court had jurisdiction to entertain an appeal from the judgment of the county court sustaining the action of the clerk of the county court (now county clerk) in refusing to accept or file a suggestion of insolvency tendered by the creditor of an estate in excess of $1,000. Motlow Milling Co. v. Warterfield, 178 Tenn. 634, 162 S.W.2d 378, 1942 Tenn. LEXIS 2 (1942).

7. —Road Cases.

Broad appeal or appeal in error, in road cases, lies according to the necessity of the case; and if the proceedings of the county court be regular, and the appellant offer no proof, the action of the county court may be affirmed. Beard v. Campbell County Justices, 40 Tenn. 97, 1859 Tenn. LEXIS 29 (1859); Hawkins v. Justices of Trousdale County, 80 Tenn. 351, 1883 Tenn. LEXIS 179 (1883).

Circuit court is without jurisdiction of appeal from county court judgment in private road proceeding pending at time of passage of act giving circuit court concurrent jurisdiction. Flowers v. Cherry, 157 Tenn. 359, 8 S.W.2d 483, 1928 Tenn. LEXIS 199 (1928).

8. —Decision to Build Courthouse.

Decision to build courthouse, being an order that affects all citizens alike, is not a judgment from which one may appeal. Carey v. Justices of Campbell County, 37 Tenn. 515, 1858 Tenn. LEXIS 52 (1858).

9. —Appropriation of Salary.

Appropriation by quarterly county court (now county legislative body) of sum in payment of salary of county election commissioners cannot be appealed, since quarterly court acts in administrative capacity and not in judicial capacity in passing appropriation. Scott County v. Scott County Election Comm'rs, 184 Tenn. 124, 196 S.W.2d 454, 1946 Tenn. LEXIS 269 (1946).

10. Procedure and Practice.

11. —Certiorari.

Proper remedy was by certiorari instead of by appeal where party aggrieved by assessment of damages in construction of public road was not present in court. Nathaniel Cowan's, case, 1 Tenn. 311, 1808 Tenn. LEXIS 28 (1808).

12. —Discretionary Appeal in Equity Causes.

The county court and county judge are not authorized to grant a discretionary appeal in equity causes. Burton v. Woods, 84 Tenn. 260, 1886 Tenn. LEXIS 93 (1886).

13. —Questions of Law.

A party to proceedings in county court can appeal on questions of law as well as mixed questions of fact and law. Ward v. Stewart, 2 Tenn. 70, 1806 Tenn. LEXIS 1 (1806).

14. Bond — Liability of Sureties.

Sureties on defendant's appeal bond were not liable for amount of judgment entered against defendant on appeal where bond merely recited that they would pay all costs and damages if defendant failed to prosecute his appeal, since bond did not include statutory words “prosecute same with effect, and for performing the judgment.” Jones v. Parsons, 10 Tenn. 321, 1829 Tenn. LEXIS 19 (1829).

15. Appeal to Appellate Courts.

Inasmuch as the county court has concurrent jurisdiction with the chancery court over persons of unsound mind, as well as over their estates, petitioner's appeal to the Supreme Court was proper. In re McCartney, 31 Tenn. App. 171, 213 S.W.2d 25, 1948 Tenn. App. LEXIS 81 (Tenn. Ct. App. 1948).

NOTES TO DECISIONS

1. Appeal to Appellate Court.

Appeal from refusal of county court to entertain petition for restoration of sanity was to Supreme Court. In re Chaffee, 211 Tenn. 88, 362 S.W.2d 467, 1962 Tenn. LEXIS 343 (1962).

Where petition to set aside county court's order approving administratrix' settlement of estate was dismissed on answer treated as demurrer going to legal sufficiency of petition and parties consented to appeal direct to Supreme Court, Supreme Court had jurisdiction of the appeal. In re Estate of Williams, 213 Tenn. 707, 378 S.W.2d 775, 1964 Tenn. LEXIS 439 (1964).

2. —In General.

Where the jurisdiction of the county court is exclusive, the general rule is that appeals therefrom lie to the circuit court; but, by consent of both parties, appearing of record, the appeal may be taken direct to the Supreme Court; and when the jurisdiction of the county court is concurrent with the circuit or chancery courts, the appeal will lie direct to the Supreme Court. Young v. Thompson, 42 Tenn. 596, 1865 Tenn. LEXIS 105 (1865); In re Bates, 49 Tenn. 533, 1871 Tenn. LEXIS 41 (1871); Swafford v. Howard, 67 Tenn. 326, 1874 Tenn. LEXIS 383 (1874); Flowers v. Cherry, 157 Tenn. 359, 8 S.W.2d 483, 1928 Tenn. LEXIS 199 (1928).

3. —Persons in Interest.

In a proceeding to declare defendant of unsound mind, defendant being an unmarried man and his brother the petitioner, the brother was an expectant heir but did not have sufficient interest to interfere with the estate of the defendant or maintain an appeal. Harmon v. Harmon, 141 Tenn. 64, 206 S.W. 333, 1918 Tenn. LEXIS 68 (1918).

4. —County Court — Exclusive Jurisdiction.

Where the jurisdiction of the county court is not concurrent, consent must be shown by the record for appeal direct to Supreme Court. In re Bates, 49 Tenn. 533, 1871 Tenn. LEXIS 41 (1871).

Where widow excepted from action of county court in confirming report of commissioners under which year's support had been set apart from husband's estate, and appealed in error directly to Court of Appeals when motion for new trial was overruled, Court of Appeals had jurisdiction of appeal inasmuch as widow and executor consented of record that appeal be taken directly from circuit court. Redmon v. Fuller, 23 Tenn. App. 623, 136 S.W.2d 724, 1939 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1939), superseded by statute as stated in, In re Estate of Truett, — S.W.2d —, 1997 Tenn. App. LEXIS 230 (Tenn. Ct. App. Apr. 7, 1997).

Where jurisdiction of county court is exclusive, general rule is that appeals therefrom lie to circuit court, but by consent of both parties, appearing of record, appeal may be taken directly to appellate court. Redmon v. Fuller, 23 Tenn. App. 623, 136 S.W.2d 724, 1939 Tenn. App. LEXIS 67 (Tenn. Ct. App. 1939), superseded by statute as stated in, In re Estate of Truett, — S.W.2d —, 1997 Tenn. App. LEXIS 230 (Tenn. Ct. App. Apr. 7, 1997).

Where the county court has exclusive jurisdiction and both parties do not consent, appeal may be taken to the circuit court. Motlow Milling Co. v. Warterfield, 178 Tenn. 634, 162 S.W.2d 378, 1942 Tenn. LEXIS 2 (1942).

5. —County Court — Concurrent Jurisdiction.

Inasmuch as county court has concurrent jurisdiction with the chancery court over persons of unsound mind, as well as over estates, appeal to appellate court was proper under provisions of this section. In re McCartney, 31 Tenn. App. 171, 213 S.W.2d 25, 1948 Tenn. App. LEXIS 81 (Tenn. Ct. App. 1948).

6. Appeal to Circuit Court.

7. —No Right to Appeal — Certiorari Denied.

Where an appeal will not lie to the circuit court, a certiorari in lieu of an appeal will not lie. Young v. Thompson, 42 Tenn. 596, 1865 Tenn. LEXIS 105 (1865); Phillips v. Hoffman, 45 Tenn. 251, 1868 Tenn. LEXIS 3 (1868); In re Bates, 49 Tenn. 533, 1871 Tenn. LEXIS 41 (1871); Swafford v. Howard, 67 Tenn. 326, 1874 Tenn. LEXIS 383 (1874); Flowers v. Cherry, 157 Tenn. 359, 8 S.W.2d 483, 1928 Tenn. LEXIS 199 (1928).

8. —Insolvency Proceedings to Sell Decedent's Lands.

In insolvency proceedings to sell lands of a decedent to pay his debts, where the county court has exclusive jurisdiction because the decedent's estate does not exceed the value of $1,000, the appeal from the decree or judgment of the county court lies to the circuit court; but if the proceedings in such case are conducted according to chancery practice, and not according to the procedure prescribed by certain sections, then the appeal from the county court lies directly to the Supreme Court. Phillips v. Hoffman, 45 Tenn. 251, 1868 Tenn. LEXIS 3 (1868); Key v. Harris, 116 Tenn. 161, 92 S.W. 235, 1905 Tenn. LEXIS 15 (1905); Harness v. Hughett, 117 Tenn. 489, 97 S.W. 68, 1906 Tenn. LEXIS 59 (1906).

An appeal lies to the Supreme Court in proceedings for administration of insolvent estate. Barksdale v. Ward, 46 S.W. 771, 1898 Tenn. Ch. App. LEXIS 31 (1898).

9. —Appropriation of Salary.

Appropriation by quarterly county court (now county legislative body) of sum in payment of salary of county election commissioners cannot be appealed, since quarterly court acts in administrative capacity and not in judicial capacity in passing appropriation. Scott County v. Scott County Election Comm'rs, 184 Tenn. 124, 196 S.W.2d 454, 1946 Tenn. LEXIS 269 (1946).

NOTES TO DECISIONS

1. Administration of Estates — Appeal.

The mode of procedure on appeals from judgments in the county court upon exception to reports and settlements of administrators and executors is controlled by the statutes regulating the procedure upon appeals to the circuit or chancery court. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

The decree of a county court, confirming an executor's final settlement cannot be reviewed in the chancery court on a petition to surcharge and falsify the final settlement where the county decree was excepted to and appealed to the circuit court by the complainant but dismissed because the appeal was not properly perfected. Brown v. Jarvis, 22 Tenn. App. 394, 123 S.W.2d 852, 1938 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1938).

2. Bastardy Case.

The time for perfecting an appeal in a bastardy case runs from the time the appeal was prayed and granted. Luke v. State, 171 Tenn. 76, 100 S.W.2d 656, 1936 Tenn. LEXIS 63 (1937).

On appeal from a bastardy proceeding to the criminal court, where more than five days intervened between the date of granting the appeal and the next term of the criminal court, the appeal could be perfected by filing the transcript the next term of the criminal court. Luke v. State, 171 Tenn. 76, 100 S.W.2d 656, 1936 Tenn. LEXIS 63 (1937).

NOTES TO DECISIONS

1. Time for Filing — How Determined.

In determining the term to which appeal was taken and the time within which transcript must be filed, the date upon which appeal was granted as shown by minute entry, and not the date on which the appeal bond was filed, controls. Green v. Craig, 164 Tenn. 445, 51 S.W.2d 480, 1932 Tenn. LEXIS 8 (1932).

Where an appeal from a bastardy case in county court was granted on January 15 and the next term of criminal court began January 21 and the day of appeal was excluded and the first day of the term of criminal court included in accordance with the provisions of § 1-3-102 there were only five intervening days and since more than five days must intervene before the appeal will lie to the following term of court an appeal perfected before the next succeeding term of court after January 21 was in time. Luke v. State, 171 Tenn. 76, 100 S.W.2d 656, 1936 Tenn. LEXIS 63 (1937).

2. Transcript of Record.

3. —Meaning.

The requirement that the “transcript of the record” shall be delivered to the circuit court clerk means that a transcript of the whole record upon which the lower court predicated its judgment be thus delivered, and is not satisfied by filing a certified copy of the judgment accompanied by an affidavit of counsel attempting to explain the failure of appellant to file a full transcript of the record. Hayes v. Kelley, 111 Tenn. 294, 76 S.W. 891, 1903 Tenn. LEXIS 23 (1903).

Affidavits of counsel attempting to explain failure to file transcript will not be looked to on appeal from county court to the circuit court. Hayes v. Kelley, 111 Tenn. 294, 76 S.W. 891, 1903 Tenn. LEXIS 23 (1903).

4. —Filing of Transcript Mandatory.

The requirement of the statute as to the time of filing the transcript with the clerk of the circuit court (now county clerk) is mandatory. Hayes v. Kelley, 111 Tenn. 294, 76 S.W. 891, 1903 Tenn. LEXIS 23 (1903); Green v. Craig, 164 Tenn. 445, 51 S.W.2d 480, 1932 Tenn. LEXIS 8 (1932).

This section is mandatory and the appellant is not relieved of his duty to file the transcript by the first day of the term by the statute providing that if the transcript is not demanded by the appellant before the next circuit court, the county court clerk shall deliver it to the circuit court clerk. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

Where county court had confirmed an executor's final settlement and appeal from such confirmance had been dismissed because transcript of record was not delivered to clerk of circuit court in the required time and there was no showing that executor had caused the delay, such confirmance of the final settlement was conclusive and could not, upon a suit being brought to surcharge and falsify executor's final settlement, be reviewed by the chancery court. Brown v. Jarvis, 22 Tenn. App. 394, 123 S.W.2d 852, 1938 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1938).

5. —Necessity of Seal.

A transcript, not the original papers, constitutes the record to be sent up on appeal to the circuit court from a judgment of the county court, and it is not necessary that a seal be placed on the certificate to the transcript. Lafollette v. Tiller, 105 Tenn. 536, 58 S.W. 1065 (1900).

NOTES TO DECISIONS

1. Mandatory Nature of Section.

This provision is mandatory and the clerk is not relieved of duty by other statutes. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

2. Certificate to Transcript.

3. —Clerk's Authority — Showing.

The clerk does not have to set out, in his certificate, his authority to act as such. Burton v. Pettibone, 13 Tenn. 443, 1830 Tenn. LEXIS 51 (1830); Coffee v. Neely, 49 Tenn. 304, 1871 Tenn. LEXIS 10 (1871).

4. —Binding Effect.

The clerk's certificate that the papers are copied from the record on file is not a certificate that the same is a full and perfect transcript of the proceedings, as required upon an appeal from the county to the circuit court; but where the parties have upon it elected to consider the cause in the circuit court, it is too late for them, after judgment in that court, to raise objection for the defect. The defect will, however, release the surety on the appeal bond. Burton v. Pettibone, 13 Tenn. 443, 1830 Tenn. LEXIS 51 (1830); Coffee v. Neely, 49 Tenn. 304, 1871 Tenn. LEXIS 10 (1871).

5. Appellant's Duty to Demand Transcript.

The provision in this section that, if the transcript is not demanded by the appellant before the next circuit court the county court clerk (now county clerk) shall deliver it to the circuit court clerk, did not relieve the appellant of the duty of demanding and filing the transcript in due season. Brown v. Jarvis, 22 Tenn. App. 394, 123 S.W.2d 852, 1938 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1938).

NOTES TO DECISIONS

1. Nature of Statute — Former Rule.

The provision of the statute that, if the transcript is not filed within the prescribed time, the judgment of the county court be affirmed, was formerly mandatory; and, upon a failure to comply therewith, it was imperative on the circuit court to affirm the judgment appealed from, regardless of the merits. Stuart v. Pasmore, 6 Tenn. 29 (1818); Duncan v. McGee, 15 Tenn. 102, 15 Tenn. 103, 1834 Tenn. LEXIS 20 (1834); McDonald v. Smith, 15 Tenn. 303, 15 Tenn. 304, 1835 Tenn. LEXIS 4 (1835); Gregory v. Burnett, 20 Tenn. 60, 1839 Tenn. LEXIS 13 (1839); Nolensville Tpk. Co. v. Quinby, 27 Tenn. 476, 1847 Tenn. LEXIS 109 (1847); Hayes v. Kelley, 111 Tenn. 294, 76 S.W. 891, 1903 Tenn. LEXIS 23 (1903); In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

2. Discretion of Court.

Prior to the Code of 1932 this section was mandatory, however since that time it has been within the sound discretion of the trial judge whether or not a case will be affirmed for a failure to file the transcript within the statutory period. Hatcher v. State, 24 Tenn. App. 213, 142 S.W.2d 326, 1940 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1940).

Failure to file a transcript within the time prescribed by § 27-4-104 is not necessarily fatal to an appeal from a county court, dismissal upon this ground being within the circuit court's discretion. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977).

3. Record Warranting Affirmance Where Full Transcript Not Filed.

On an appeal from the county court to the circuit court, a transcript of the pleadings in the county court, showing the subject of the controversy, and that the court had jurisdiction of the cause and the parties, together with a certified copy of the judgment, filed in the circuit court by the appellant, constitutes a sufficient record upon which an affirmance of the judgment of the county court may be had in the circuit court for the appellant's failure to file a full transcript of the record within the time prescribed by the statute. Hayes v. Kelley, 111 Tenn. 294, 76 S.W. 891, 1903 Tenn. LEXIS 23 (1903).

4. Review in Chancery Court.

The decree of a county court confirming an executor's final settlement cannot be reviewed in the chancery court on a petition to surcharge and falsify the final settlement where the county decree was excepted to and appealed to the circuit court by the complainant but dismissed because the appeal was not properly perfected. Brown v. Jarvis, 22 Tenn. App. 394, 123 S.W.2d 852, 1938 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1938).

NOTES TO DECISIONS

1. Application of Section.

Where issues of fact are made up and tried before the county court, and an appeal is taken to the circuit court, the case should be reheard upon the merits, and not upon a writ of error. Roberts & Philips v. Stewart, 9 Tenn. 390, 1830 Tenn. LEXIS 29 (1830); Patton v. Clark, 17 Tenn. 268, 1836 Tenn. LEXIS 39 (1836); Lafollette v. Tiller, 105 Tenn. 536, 58 S.W. 1065 (1900).

Hearings in circuit courts of appeals from county court appointments of administrators or executors are de novo in nature rather than in the nature of writs of error, and therefore filing a bill of exceptions is not essential to circuit court review. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977).

This section does not require that all appeals from the county court to the circuit court except jury cases and chancery cases be reviewed as appeals in the nature of writs of error are reviewed rather than as appeals, which afford de novo hearings in the circuit court. Delffs v. Delffs, 545 S.W.2d 739, 1977 Tenn. LEXIS 607 (Tenn. 1977), rejecting dictum in Griffitts v. Rockford Utility Dist., 41 Tenn. App. 653, 298 S.W.2d 33, 1956 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1956).

2. Construction.

The expression “de novo” as used herein means “as though the suit originated in the circuit court.” Teague v. Gooch, 206 Tenn. 291, 333 S.W.2d 1, 1960 Tenn. LEXIS 364 (1960).

3. Jury Trial.

Where a minor was adjudged a delinquent child by a juvenile court, and he appealed, he was entitled to a trial by a jury in the circuit court and to introduce such competent evidence as he desired to introduce. Doster v. State, 195 Tenn. 535, 260 S.W.2d 279, 1953 Tenn. LEXIS 375 (1953).

NOTES TO DECISIONS

1. Appellate Jurisdiction.

The issue under both T.C.A. § 27-5-108(a)(1) and T.C.A. § 27-5-101 is whether the party seeking to appeal secured a result in the general sessions court that was less favorable than what he or she requested, and the more favorable result desired must be something that was within the power of the general sessions court to grant; the question is not whether the judgment was “adverse” or the party was “dissatisfied” in some abstract, metaphysical sense, but rather whether the judgment was “adverse” or the party “dissatisfied” within the context of a general sessions court proceeding. Benson v. Herbst, 240 S.W.3d 235, 2007 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 18, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 874 (Tenn. Sept. 17, 2007).

2. —Jurisdiction Lacking.

As soon as the circuit judge ascertains that his court has not jurisdiction, his duty is to set aside the proceedings even after judgment rendered, and to allow proper amendment. Hall v. Bewley, 30 Tenn. 106, 1850 Tenn. LEXIS 68 (1849).

3. —Ordinance Breach.

Where plaintiff, fined for violating a city ordinance, contended the circuit court had no jurisdiction on appeal from the city court, it was held that the contention was without merit, as the proceeding was a civil proceeding as in debt and was valid under this section. Murfreesboro v. Bowles, 187 Tenn. 134, 213 S.W.2d 35, 1948 Tenn. LEXIS 419 (1948).

4. Time for Appeal.

5. —Computation of Time.

The day on which the judgment was rendered is to be excluded. Carson v. Love, 16 Tenn. 215, 1835 Tenn. LEXIS 79 (1835).

Where trial before magistrate was held on Friday, and defendant filed pauper's oath on Monday in lieu of appeal bond the circuit court erred in dismissing appeal on the ground that oath was not filed within two days, since time for appeal was extended an additional day as second day fell on Sunday. Parrish v. Williams, 169 Tenn. 186, 83 S.W.2d 895, 1935 Tenn. LEXIS 29 (1935).

If “second day thereafter” falls on Sunday court must take judicial notice of that fact. Parrish v. Williams, 169 Tenn. 186, 83 S.W.2d 895, 1935 Tenn. LEXIS 29 (1935).

6. Certiorari.

City clerk was not a municipal officer charged with the conduct of trials from which an appeal would lie under this section, therefore certiorari was a proper remedy for the purpose of reviewing her actions in refusing to certify recall petitions to the election commissioners. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

Appeal of removal of commissioner under § 6-20-220(d) was properly by certiorari under §§ 27-9-101 and 27-9-102, and not by appeal under this section and § 27-5-102. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

Trial court did not err in dismissing a motorists'  petition for certiorari because it had not been filed within ten days following his 1999 reckless driving conviction as required by T.C.A. § 27-5-101; The motorist had had two well-established remedies available to him to challenge his 1999 conviction; He did neither, those avenues were no longer available to him; and he failed to explain satisfactorily why he had failed to file a timely appeal. City of Gallatin v. Webb, — S.W.3d —, 2006 Tenn. App. LEXIS 310 (Tenn. Ct. App. May 12, 2006).

NOTES TO DECISIONS

1. Double Jeopardy.

Where petitioner who was convicted in municipal court appealed to circuit court and, pending appeal, was tried in circuit court on charges arising from same cause, such action was double jeopardy even though such appeal had the effect of setting aside conviction and granting petitioner a trial de novo. Pettyjohn v. Evatt, 369 F. Supp. 865, 1974 U.S. Dist. LEXIS 12618 (E.D. Tenn. 1974), aff'd without opinion, 500 F.2d 1403 (6th Cir. Tenn. 1974).

2. Trial De Novo on Appeal.

An appeal from the judgment of a city recorder gives a retrial in the circuit court, where the matter will be heard de novo, under the rules of practice applicable to civil cases, and the judgment need not be an affirmance or dismissal, but may be for any amount within the limit of the ordinance, in the discretion of the court. Memphis v. Schade, 59 Tenn. 579, 1873 Tenn. LEXIS 117 (1873).

A circuit court hearing a probation revocation appeal from a municipal court must make an independent judgment following the presentation of proof; merely reviewing the municipal court judgment for abuse of discretion does not satisfy the requirements of this section. State v. Cunningham, 972 S.W.2d 16, 1998 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. 1998).

3. Jury Trial on Appeal.

A defendant is allowed a jury trial on an appeal to the circuit court from a judgment of a municipal court based on the violation of a city ordinance, provided a jury trial is timely demanded. Chattanooga v. Myers, 787 S.W.2d 921, 1990 Tenn. LEXIS 158 (Tenn. 1990).

4. Amendment of Warrant in Circuit Court.

Amendment of warrant for violation of city ordinance may be allowed by the circuit court, to which the action is taken by certiorari for a new trial; and a warrant charging “affray” may be amended to charge “disorderly conduct” instead, and it is error to refuse such amendment, and to quash the warrant. Bristol v. Burrow, 73 Tenn. 128, 1880 Tenn. LEXIS 97 (1880).

5. Certiorari.

Appeal of removal of commissioner under § 6-20-220(d) was properly by certiorari under §§ 27-9-101 and 27-9-102, and not by appeal under § 27-5-101 and this section. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

6. Case Removed by Appeal.

This action originated in municipal court and was timely appealed to the trial court; pursuant to the plain language of the rule, this action clearly constituted a case removed by appeal to the chancery or circuit courts. City of Athens v. Straser, — S.W.3d —, 2020 Tenn. App. LEXIS 464 (Tenn. Ct. App. Oct. 20, 2020).

NOTES TO DECISIONS

1. Constitutionality of Statute.

Right of trial by jury was not infringed by enlarging the civil jurisdiction of justices of peace and requiring an appellant to give bond for payment of the judgment of the appellate court, in order to obtain a trial by a common law jury on appeal. Capital Traction Co. v. Hof, 174 U.S. 1, 19 S. Ct. 580, 43 L. Ed. 873, 1899 U.S. LEXIS 1480 (1899).

2. Bond on Appeal.

By reading the plain language of T.C.A. § 29-18-130(b)(2) and construing it harmoniously with Tenn. R. Civ. P. 62.05, the statute did not require a tenant who had surrendered possession of the property to post a bond for one year's rent when appealing an adverse judgment of the general sessions court in an unlawful detainer action; the cost bond that the tenants had already posted pursuant to T.C.A. § 27-5-103(a) was sufficient to perfect their appeal and confer subject matter jurisdiction on the circuit court. Johnson v. Hopkins, 432 S.W.3d 840, 2013 Tenn. LEXIS 1010 (Tenn. Dec. 19, 2013).

In an appeal of a decision for a driver in an insured's suit, the Circuit Court erred in granting an insurer's motion to dismiss the appeal for lack of subject-matter jurisdiction based on the insured's failure to file a surety bond pursuant to T.C.A. § 27-5-103 because the giving of a cash bond of $ 211.50, which included the $ 150 “standard court cost” for appeals under T.C.A. § 8-21-401(b)(1)(C)(i), satisfied the requirement in T.C.A. 27-5-103(a) to give bond with good security for the costs of the appeal. Andrews v. Clemmer, — S.W.3d —, 2013 Tenn. App. LEXIS 145 (Tenn. Ct. App. Feb. 28, 2013).

Appellant met the requirement of the jurisdictional cost bond for appeal to the circuit court by filing a pauper's oath, and had she relinquished possession of the property, the appeal bond would have been sufficient to perfect her appeal; however, because she retained possession, she was also required to post a possession bond, and in the absence of one, the appeal was not perfected, and the trial court properly dismissed it. Crye-Leike Prop. Mgmt. v. Dalton, — S.W.3d —, 2016 Tenn. App. LEXIS 670 (Tenn. Ct. App. Sept. 12, 2016).

3. —Requirements.

If § 27-5-106 extends the requirements of this section, it does so only to the extent of a judgment rendered by default for failure to prosecute the appeal. Shelton Dental Associates v. La Fevre, 767 S.W.2d 665, 1989 Tenn. App. LEXIS 58 (Tenn. Ct. App. 1989).

Bond statute that must be followed where tenants appeal from an adverse decision in general sessions court in a detainer action is that found at T.C.A. § 29-18-130(b)(2), rather than the general bond statute codified at T.C.A. § 27-5-103. Swanson Devs., LP v. Trapp, — S.W.3d —, 2008 Tenn. App. LEXIS 119 (Tenn. Ct. App. Feb. 29, 2008), overruled, Johnson v. Hopkins, 432 S.W.3d 840, 2013 Tenn. LEXIS 1010 (Tenn. Dec. 19, 2013).

Defendant in a personal injury suit properly perfected her appeal from general sessions court as required by T.C.A. § 27-5-103, although her insurer's checks for the costs of the appeal were not accepted by the general sessions court. The record established that the general sessions court clerk paid the appeal bond to the circuit court clerk's office, and any mistake or misunderstanding between the insurer and the general sessions court clerk's office regarding the two checks did not affect the validity of the appeal. Carter v. Batts, 373 S.W.3d 547, 2011 Tenn. App. LEXIS 587 (Tenn. Ct. App. Oct. 28, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 233 (Tenn. Apr. 11, 2012).

T.C.A. §§ 8-21-401 and 27-5-103, when viewed together, are not irreconcilable so as to warrant an implicit repeal of § 27-5-103, and payment of an appeal filing fee does not satisfy the jurisdictional requirements of § 27-5-103. Jacob v. Partee, 389 S.W.3d 339, 2012 Tenn. App. LEXIS 555 (Tenn. Ct. App. Aug. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 924 (Tenn. Dec. 12, 2012), overruled, Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled in concurring opinion at Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled, Meacham v. Starnes, — S.W.3d —, 2013 Tenn. App. LEXIS 135 (Tenn. Ct. App. Feb. 27, 2013), overruled, Andrews v. Clemmer, — S.W.3d —, 2013 Tenn. App. LEXIS 145 (Tenn. Ct. App. Feb. 28, 2013), overruled, Brown v. Shtaya, — S.W.3d —, 2013 Tenn. App. LEXIS 162 (Tenn. Ct. App. Mar. 6, 2013), overruled, Moore v. Correct Care Solutions, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 25, 2013), overruled, Griffin v. Campbell Clinic, P.A., — S.W.3d —, 2013 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 31, 2013), overruled, Peterson v. Lepard, — S.W.3d —, 2014 Tenn. App. LEXIS 153 (Tenn. Ct. App. Mar. 20, 2014), overruled, Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

As appellants filed an appeal of a decision of the General Session Court to the Circuit Court, arising from a vehicle accident, but they failed to file an appeal bond pursuant to T.C.A. §§ 27-5-103 and 27-5-108(a)(1), the attempted appeals due were properly dismissed due to lack of subject matter jurisdiction; the failure to timely file an appeal bond was not merely an informality under T.C.A. § 16-15-729. Jacob v. Partee, 389 S.W.3d 339, 2012 Tenn. App. LEXIS 555 (Tenn. Ct. App. Aug. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 924 (Tenn. Dec. 12, 2012), overruled, Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled in concurring opinion at Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled, Meacham v. Starnes, — S.W.3d —, 2013 Tenn. App. LEXIS 135 (Tenn. Ct. App. Feb. 27, 2013), overruled, Andrews v. Clemmer, — S.W.3d —, 2013 Tenn. App. LEXIS 145 (Tenn. Ct. App. Feb. 28, 2013), overruled, Brown v. Shtaya, — S.W.3d —, 2013 Tenn. App. LEXIS 162 (Tenn. Ct. App. Mar. 6, 2013), overruled, Moore v. Correct Care Solutions, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 25, 2013), overruled, Griffin v. Campbell Clinic, P.A., — S.W.3d —, 2013 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 31, 2013), overruled, Peterson v. Lepard, — S.W.3d —, 2014 Tenn. App. LEXIS 153 (Tenn. Ct. App. Mar. 20, 2014), overruled, Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

Payment of a cash bond in the amount of the statutory court costs set out in T.C.A. § 8-21-401(b)(1)(C)(i) satisfies the plaintiffs'  obligation to give bond with good security for the costs of the appeal from a general sessions court judgment under T.C.A. § 27-5-103(a). Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013).

The requirement of T.C.A. § 27-5-103(a) of a “bond with good security” may be satisfied by either a cash bond or a surety bond. Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013).

T.C.A. § 27-5-103(a) provides for an appeal bond in an amount certain, with the amount to be determined “as hereinafter provided” by the legislature or its designee. Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013).

Circuit court erred in granting defendant's motion to dismiss plaintiff's appeal on the ground that the circuit court lacked subject matter jurisdiction since plaintiff did not comply with the appeal bond requirement in T.C.A. § 27-5-103 because plaintiff's act of giving $ 211 to the general sessions court clerk, which included the $ 150 “standard court cost” for such appeals under T.C.A. § 8-21-401(b)(1)(C)(i), satisfied the requirement in T.C.A. § 27-5-103(a) to give bond with good security for the costs of the appeal. Meacham v. Starnes, — S.W.3d —, 2013 Tenn. App. LEXIS 135 (Tenn. Ct. App. Feb. 27, 2013).

Circuit Court erred in dismissing owners'  and tenant's appeals from decisions in a General Sessions Court forcible entry and detainer action and wrongful ouster claim because the giving of a cash bond of $ 211.50, which included the $ 150 “standard court cost” for appeals under T.C.A. § 8-21-401(b)(1)(C)(i), satisfied the requirement in T.C.A. § 27-5-103(a) to give bond with good security for the costs of the appeal; the actions in this case were sufficient to perfect the appeals under § 27-5-103(a). Brown v. Shtaya, — S.W.3d —, 2013 Tenn. App. LEXIS 162 (Tenn. Ct. App. Mar. 6, 2013).

Circuit court erred in determining that it lacked subject matter jurisdiction based on plaintiff's failure to file a surety bond because plaintiff timely filed her notice of appeal, paid a cash bond of $ 211 to the general sessions court clerk, and provided an additional $ 250 cash bond; as a result, plaintiff met her obligation under T.C.A. § 27-5-103 to give bond with good security for the costs of the appeal. West v. AMISUB (SFH), Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 191 (Tenn. Ct. App. Mar. 21, 2013).

Appellate court lacked subject matter jurisdiction to adjudicate the issues raised on appeal because an occupant of property sold at a foreclosure sale did not perfect the appeal by filing a bond for good surety or pauper's oath under T.C.A. §§ 27-5-103 or 29-18-130, and the bond requirements were mandatory and jurisdictional. Pledged Prop. II, LLC v. Morris, — S.W.3d —, 2013 Tenn. App. LEXIS 258 (Tenn. Ct. App. Apr. 15, 2013).

Trial court had subject matter jurisdiction, even though a patient failed to file a surety bond, since the payment of standard court costs under T.C.A. § 8-21-401 satisfied the requirement to give bond for the costs of the appeal to the circuit court under this section. Griffin v. Campbell Clinic, P.A., — S.W.3d —, 2013 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 31, 2013), aff'd, 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

Patient's cash bond was sufficient to perfect an appeal from a general sessions court to a circuit court because the bond vested jurisdiction in the circuit court since T.C.A. § 27-5-103 expressed no limitation as to the type of bond required, so a surety bond in an unlimited amount did not solely provide the “good security” required by T.C.A. § 27-5-103(a). Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

T.C.A. § 27-5-103 was not ambiguous because the phrase “costs of the appeal” clearly referred to the panoply of charges imposed by the general assembly. Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

T.C.A. § 27-5-103 was not ambiguous because the phrase “as hereinafter provided” modified “good security,” so T.C.A. § 27-5-103(a) imposed an appeal bond, while T.C.A. 27-5-103(b) defined the bond. Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

4. —Amendment or Substitution of New Bond.

If the fact be that an appeal bond was accepted within the prescribed time, the proper course would be to move that the justice (now general sessions judge) be allowed to amend his endorsement of papers “returned without bond.” Chapman v. Howard, 71 Tenn. 363, 1879 Tenn. LEXIS 89 (1879), superseded by statute as stated in, Red Boiling Springs v. Whitley, 777 S.W.2d 706, 1989 Tenn. App. LEXIS 457 (Tenn. Ct. App. 1989).

Where three defendants, sued as doing business as the Biddle Auto Company before a justice, appealed to the circuit court and executed bond in the name of the Biddle Auto Company, with two of the named defendants as sureties, and the justice within two days from the judgment accepted and approved the bond as sufficient, and filed the papers in the circuit court, the appellants may be permitted in the circuit court to amend their appeal bond or to substitute a new and sufficient appeal bond, so as to prevent the dismissal of their appeal for want of such bond. Even after appeal to Court of Appeals, there may be compliance with order. Frazier v. Biddle Auto Co., 6 Tenn. Civ. App. (6 Higgins) 489 (1916).

5. —Directory Nature of Provision for Bond.

The provision that the bond shall be given before the appeal is granted is directory to the justice (now general sessions judge), and does not deprive him of the right to exercise a sound discretion in the matter; but the appeal is not perfected without the bond. McCarver v. Jenkins, 49 Tenn. 629, 1871 Tenn. LEXIS 55 (1871); Poindexter v. Cannon, 2 Shan. 290 (1877); Chapman v. Howard, 71 Tenn. 363, 1879 Tenn. LEXIS 89 (1879), superseded by statute as stated in, Red Boiling Springs v. Whitley, 777 S.W.2d 706, 1989 Tenn. App. LEXIS 457 (Tenn. Ct. App. 1989).

6. Sureties on Bond.

7. —Administering Oaths and Examining Sureties.

The justice (now general sessions judge) is invested with implied authority to administer oaths to proposed sureties for appeals, and to examine them touching their solvency. State v. Wilson, 87 Tenn. 693, 11 S.W. 792, 1889 Tenn. LEXIS 19 (1889).

8. —Release of Sureties.

Death of defendant does not release his surety on appeal bond, and the suit may be revived against his representatives, real or personal, and judgment may be rendered against such surety. Butterworth v. Brown's Heirs, 15 Tenn. 467, 1835 Tenn. LEXIS 26 (1835).

Where the defendant appealed from a justice's judgment, giving bond with surety, and in the circuit court filed a plea of discharge in bankruptcy, upon which judgment was rendered in his favor, the surety on the appeal bond was thereby discharged, though the judgment was on a promissory note. Martin v. Kilbourn, 59 Tenn. 331, 1873 Tenn. LEXIS 69 (1873).

Where the defendant appealed from a justice's judgment, giving bond with sureties, and, pending the appeal, he became bankrupt, and, upon motion of the plaintiff, the assignee in bankruptcy was substituted as defendant, it was held that the sureties on the appeal bond were thereby released. Thomas v. Cole, 57 Tenn. 411, 1873 Tenn. LEXIS 224 (1873).

9. Filing Bond.

The bond required by this section is to be filed in the court from which the appeal is taken. Red Boiling Springs v. Whitley, 777 S.W.2d 706, 1989 Tenn. App. LEXIS 457 (Tenn. Ct. App. 1989).

10. —Presumption of Appeal from Bond.

Presumption of appeal from bond alone was rebutted by justice's endorsement of papers “returned without bond,” though an appeal bond be found in the papers, bearing date with the date of the filing of the papers in the circuit court, but not showing, on its face or by endorsement, when it was filed. Chapman v. Howard, 71 Tenn. 363, 1879 Tenn. LEXIS 89 (1879), superseded by statute as stated in, Red Boiling Springs v. Whitley, 777 S.W.2d 706, 1989 Tenn. App. LEXIS 457 (Tenn. Ct. App. 1989).

11. —Informal Filing.

Where attorney for intending appellant called the justice over the telephone and told him that he had an appeal bond and the justice replied that he could call and get it next morning, but justice was not advised of the form or amount of the bond, the bond was not approved or filed as required. Hoback Motor Co. v. Kyle, 10 Tenn. App. 306, — S.W.2d —, 1929 Tenn. App. LEXIS 35 (Tenn. Ct. App. 1929).

12. —Time Within Which Bond Must Be Given.

The appeal must be prayed and perfected within the two entire days after the judgment, exclusive of the day of the judgment and exclusive of Sundays, and the bond given or the pauper oath taken within the prescribed time; and the justice (now general sessions judge) has no power or jurisdiction to grant an appeal thereafter, or to extend the time for giving the bond or taking the pauper oath. Park v. Bybee, 60 Tenn. 267, 1872 Tenn. LEXIS 486 (1873); Poindexter v. Cannon, 2 Shan. 290 (1877); Howard v. Long, 71 Tenn. 207, 1879 Tenn. LEXIS 61 (1879); Chapman v. Howard, 71 Tenn. 363, 1879 Tenn. LEXIS 89 (1879), superseded by statute as stated in, Red Boiling Springs v. Whitley, 777 S.W.2d 706, 1989 Tenn. App. LEXIS 457 (Tenn. Ct. App. 1989); Douglass v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); Frazier v. Biddle Auto Co., 6 Tenn. Civ. App. (6 Higgins) 489 (1916).

13. Appeal Forma Pauperis.

The law is very liberal in allowing the prosecution of suits in forma pauperis, the object being to place the poor on a level with the rich; considering this a defendant was allowed a petition for certiorari and supersedeas on a pauper's oath which showed that some of his property was encumbered and that he had only an equitable interest therein, that he had offered to mortgage everything he owned to make an appeal and that he could procure no one to sign the required bond. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

14. —Procedure.

Certificate of appeal prayed and of oath taken does not prove that an appeal was granted; and the appeal will be dismissed, unless amendment be made by the justice (now general sessions judge) to show the appeal, and the pauper oath be filed. The pauper oath must be subscribed by the appellant, and the justice's written statement that the appellant “swears that, owing to his poverty, he is not able to bear the expenses of the suit,” is not sufficient. Jennings v. Mercer, 48 Tenn. 9, 1870 Tenn. LEXIS 3 (1870).

Where trial before magistrate was held on Friday, and defendant filed pauper's oath on Monday in lieu of appeal bond the circuit court erred in dismissing appeal on the ground that oath was not filed within two days, since time for appeal was extended an additional day as second day fell on Sunday. Parrish v. Williams, 169 Tenn. 186, 83 S.W.2d 895, 1935 Tenn. LEXIS 29 (1935).

Circuit court properly dismissed a driver's appeal of a traffic conviction, because, while the driver filed a pauper's oath in a circuit court, T.C.A. §§ 27-5-103, 27-5-105 required a bond or oath be filed in the city court in order to perfect the appeal; consequently, the circuit court did not gain jurisdiction over the matter. Tubwell v. City of Memphis, 413 S.W.3d 77, 2013 Tenn. App. LEXIS 187 (Tenn. Ct. App. Mar. 20, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 662 (Tenn. Aug. 13, 2013).

NOTES TO DECISIONS

1. Time to Prosecute Appeal.

The appellant, if he was the original defendant, is allowed the full term to which the papers were returnable within which to appeal and prosecute the appeal. Such party is entitled so to prosecute notwithstanding the record was not filed within the stipulated five days. His appeal will not be dismissed on motion if he stands ready to prosecute and asks for hearing. Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929).

2. Failure to File Papers.

3. —Effect.

A litigant who is present in court at the first term after appeal demanding trial on merits is entitled to the same, although the papers may not have been filed within the five day period. Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929).

The substance of the holding in Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929) is that an appellant will not be denied the benefits of his appeal properly perfected if the papers are filed in the circuit court by the next term of court after trial on the case in the lower court. City Finance Co. v. Harris, 60 Tenn. App. 180, 445 S.W.2d 467, 1968 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1968).

Where appeal was perfected within the ten days provided by § 27-5-108 but appeal papers were not filed in circuit court the next term after trial in general sessions court, appeal papers subsequently filed became functus officio and appeal was properly dismissed for failure to prosecute. City Finance Co. v. Harris, 60 Tenn. App. 180, 445 S.W.2d 467, 1968 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1968).

Circuit court properly dismissed a driver's appeal of a traffic conviction, because, while the driver filed a pauper's oath in a circuit court, T.C.A. §§ 27-5-103, 27-5-105 required a bond or oath be filed in the city court in order to perfect the appeal; consequently, the circuit court did not gain jurisdiction over the matter. Tubwell v. City of Memphis, 413 S.W.3d 77, 2013 Tenn. App. LEXIS 187 (Tenn. Ct. App. Mar. 20, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 662 (Tenn. Aug. 13, 2013).

4. —Res Judicata.

Where appeal from judgment in justice court was not prosecuted, the papers having been lost before transmission to circuit court, or never taken up, or lost after transmission, the judgment was not res judicata as to the issues involved. Childs v. Dennis, 61 S.W. 1092, 1901 Tenn. Ch. App. LEXIS 16 (1901).

5. Lien on Surety's Property.

The surety on appeal bond scheduling property under oath did not fix a lien thereon. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

The mere fact that one is a party to a case and nothing more does not fix a lien on his real estate; accordingly where one signed an appeal bond and set out in his justification the land in controversy, a lien did not fasten on the land. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

NOTES TO DECISIONS

1. Failure to Prosecute Appeal.

Circuit court properly remanded the case for execution of the judgment because defendant failed to appear and prosecute his appeal, and plaintiff was entitled to have judgment final, by default, for the amount of the judgment of the court of general sessions under T.C.A. § 27-5-106 and T.C.A. § 27-5-107; also, because the circuit court's judgment was for dismissal and costs of the appeal only, the general sessions judgment was reinstated and enforceable. Nix v. Sutton, — S.W.3d —, 2007 Tenn. App. LEXIS 339 (Tenn. Ct. App. May 25, 2007).

Under T.C.A. §§ 27-5-106 and 27-5-107, a circuit court properly dismissed a party's appeal of an adverse judgment entered by the general sessions court because the party failed to appear at the hearing, in that he was in the wrong court on the day of the hearing of the appeal. Memphis Area Teachers Credit Union v. Jones, — S.W.3d —, 2010 Tenn. App. LEXIS 384 (Tenn. Ct. App. June 14, 2010).

General sessions court and the circuit court did not err in awarding the creditor a default judgment because the debtor failed to appear and prosecute the appeal; T.C.A. §§ 27-5-106(a) and 27-5-107 did not give the trial court discretion to enter final judgment for the creditor; and T.C.A. § 27-5-106(a) provided that the plaintiff should have judgment final, by default, for the amount of the judgment of the court of general sessions if the defendant failed to appear and prosecute the appeal. Browning v. Browning, — S.W.3d —, 2018 Tenn. App. LEXIS 495 (Tenn. Ct. App. Aug. 27, 2018).

Fails to appear” for purposes of T.C.A. § 27-5-106(a) suggests a lack of interest in prosecuting the appeal and that the appellant/defendant just did not bother to show up; here, defendant timely filed a motion under Tenn. R. Civ. P. 59.04, 60.02 claiming to have a valid reason for not appearing, and the circuit court implicitly credited his reason by granting his motion, which was not an abuse of discretion. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2019 Tenn. App. LEXIS 17 (Tenn. Ct. App. Jan. 15, 2019).

Circuit court erred in dismissing a corporate president's appeal and remanding the case to the general sessions court for execution of the general sessions judgment because the circuit court should have entered its own default judgment against the president in the amount of the general sessions judgment, plus costs, subject to execution in the circuit court. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

If the defendant/appellant fails to prosecute his or her appeal to circuit court, both T.C.A. §§ 27-5-106 and 27-5- 107 direct the circuit court to enter a default judgment in the amount of the general sessions judgment, plus costs; given the de novo nature of the appeal from general sessions court to circuit court, “affirmance” of the general sessions judgment does not result in issuance of a mandate to that court as would affirmance of a circuit court judgment by the court of appeals. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

Neither T.C.A. § 27-5-106 nor § 27-5-107 includes dismissal of the appeal and remand to the general sessions court as an option in the event the defendant/appellant fails to appear and prosecute an appeal from the general sessions court, and neither includes a mechanism by which the circuit court remands the matter back to general sessions court once the defendant/appellant perfects an appeal; the supreme court presumes the legislature intentionally omitted such an option. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

Steve Frost Agency v. Spurlock, 859 S.W.2d 337, 1993 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1993), and its progeny, including Cantrell v. Tolley, No. W2010-02019-COA-R3-CV, 2011 WL 3556988 (Tenn. Ct. App. Aug. 11, 2011), are overruled to the extent they interpret T.C.A. §§ 27-5-106 and 27-5-107 as giving circuit courts a second option when a defendant/appellant from general sessions court fails to appear and prosecute his or her appeal, to dismiss the defendant's appeal and remand to general sessions court. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

2. —Affirmance.

Where defendant in a suit before a justice of the peace appealed the judgment rendered against her and then failed to prosecute her appeal, the judgment of the circuit court was in effect an affirmance of the judgment rendered before the justice of the peace. Cooke v. Neighborhood Grocery, 173 Tenn. 681, 122 S.W.2d 438, 1938 Tenn. LEXIS 54 (1938).

Upon dismissal of an appeal for failure of appellant to appear and prosecute, it is the duty of the circuit court to render judgment for the amount of the general sessions court's judgment. However, if the circuit court judgment is for dismissal and costs only, the general sessions judgment is reinstated and may be enforced as if a procedendo had been awarded. Steve Frost Agency v. Spurlock, 859 S.W.2d 337, 1993 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1993).

3. —Motion for Affirmance — Time to Make.

Motion by the appellee for an affirmance of the judgment below comes too late, when made after the papers have been filed by the appellant. McGhee v. Grady, 80 Tenn. 89, 1883 Tenn. LEXIS 143 (1883).

4. —Practice as to Calling Appellant.

On appeal to circuit court from a justice of the peace (now general sessions judge) proper practice is to call appellant to appear and prosecute his appeal, whether it were plaintiff or defendant who appealed. Stowers v. Ware, 3 Tenn. Civ. App. (3 Higgins) 431 (1913).

5. Failure to Return Papers.

Failure of justice to return papers within first two days of term to which appeal is made returnable as provided by Acts 1809, ch. 63, § 2 did not bar an appeal if papers were returned during term, since Acts 1811, ch. 119, § 2 by implication repealed Acts 1809, ch. 63, § 2 allowing affirmance of judgment if not filed within first two days of term. Humphrey v. Humphrey, 31 Tenn. 154, 1851 Tenn. LEXIS 38 (1851).

Where an appeal is prayed from a judgment of a justice of the peace (now general sessions judge), it was never the intention of the lawmakers to deprive a litigant, who was present in court at the first term demanding a trial or a hearing upon the merits merely because the magistrate for some reason has not filed the papers within the five day period. Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929).

Where appeal was perfected within the ten days provided by § 27-5-108 but appeal papers were not filed in circuit court the next term after trial in general sessions court, appeal papers subsequently filed became functus officio and appeal was properly dismissed for failure to prosecute. City Finance Co. v. Harris, 60 Tenn. App. 180, 445 S.W.2d 467, 1968 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1968).

Circuit court properly dismissed a driver's appeal of a traffic conviction, because, while the driver filed a pauper's oath in a circuit court, T.C.A. §§ 27-5-103, 27-5-105 required a bond or oath be filed in the city court in order to perfect the appeal; consequently, the circuit court did not gain jurisdiction over the matter. Tubwell v. City of Memphis, 413 S.W.3d 77, 2013 Tenn. App. LEXIS 187 (Tenn. Ct. App. Mar. 20, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 662 (Tenn. Aug. 13, 2013).

6. Effect on § 27-5-103 Requirements.

If this section extends the requirements of § 27-5-103, it does so only to the extent of a judgment rendered by default for failure to prosecute the appeal. Shelton Dental Associates v. La Fevre, 767 S.W.2d 665, 1989 Tenn. App. LEXIS 58 (Tenn. Ct. App. 1989).

7. Affirmance of Judgment.

Circuit court did not err in denying appellant's motion to quash execution because it had jurisdiction and authority to issue execution to enforce its order; in affirming the judgment entered in favor of appellee in the general sessions court, the circuit court's intent was to adopt the general sessions judgment as its own because in its order denying appellant's motion to quash execution the circuit court stated that appellee was entitled to execute the general sessions judgment because it was treated as if the judgment had been rendered in the circuit court. Cantrell v. Tolley, — S.W.3d —, 2011 Tenn. App. LEXIS 433 (Tenn. Ct. App. Aug. 11, 2011).

8. Applicability.

Statute addresses those situations where the circuit court appellant is the original general sessions court defendant and fails to appear in circuit court; in this case, the company was the original defendant, and it was the insurer, the original plaintiff in general sessions court and the appellee in the circuit court appeal, that failed to appear to defend against the company's motion to dismiss the circuit court case, and thus the statute was not dispositive of the instant appeal. GEICO Gen. Ins. Co. v. G & S Transp., Inc., — S.W.3d —, 2016 Tenn. App. LEXIS 775 (Tenn. Ct. App. Oct. 17, 2016).

NOTES TO DECISIONS

1. Dismissal of Appeal.

There is a distinction between dismissing an appeal and taking a voluntary dismissal after an appeal has been perfected. Katz v. Bilsky, 759 S.W.2d 420, 1988 Tenn. App. LEXIS 226 (Tenn. Ct. App. 1988).

Circuit court properly remanded the case for execution of the judgment because defendant failed to appear and prosecute his appeal, and plaintiff was entitled to have judgment final, by default, for the amount of the judgment of the court of general sessions under T.C.A. § 27-5-106 and T.C.A. § 27-5-107; also, because the circuit court's judgment was for dismissal and costs of the appeal only, the general sessions judgment was reinstated and enforceable. Nix v. Sutton, — S.W.3d —, 2007 Tenn. App. LEXIS 339 (Tenn. Ct. App. May 25, 2007).

Under T.C.A. §§ 27-5-106 and 27-5-107, a circuit court properly dismissed a party's appeal of an adverse judgment entered by the general sessions court because the party failed to appear at the hearing, in that he was in the wrong court on the day of the hearing of the appeal. Memphis Area Teachers Credit Union v. Jones, — S.W.3d —, 2010 Tenn. App. LEXIS 384 (Tenn. Ct. App. June 14, 2010).

In a case stemming from property damage, a trial court did not err by allowing a property owner to dismiss the lawsuit following an appeal by an adjacent landowner from a general sessions court judgment in favor of the property owner; a voluntary nonsuit was permitted at any time before the trial of a cause, and there was no authority holding that the party not filing an appeal from general sessions court was not allowed to nonsuit the action in circuit court. An argument that it was unfair to allow the owner to nonsuit the action and then potentially refile his claim in circuit court, seeking a larger amount of damages, because he did not appeal the general sessions judgment was rejected under the savings statute. Layman v. Acor, — S.W.3d —, 2016 Tenn. App. LEXIS 46 (Tenn. Ct. App. Jan. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 450 (Tenn. June 23, 2016).

General sessions court and the circuit court did not err in awarding the creditor a default judgment because the debtor failed to appear and prosecute the appeal; T.C.A. §§ 27-5-106(a) and 27-5-107 did not give the trial court discretion to enter final judgment for the creditor; and T.C.A. § 27-5-106(a) provided that the plaintiff should have judgment final, by default, for the amount of the judgment of the court of general sessions if the defendant failed to appear and prosecute the appeal. Browning v. Browning, — S.W.3d —, 2018 Tenn. App. LEXIS 495 (Tenn. Ct. App. Aug. 27, 2018).

If the defendant/appellant fails to prosecute his or her appeal to circuit court, both T.C.A. §§ 27-5-106 and 27-5- 107 direct the circuit court to enter a default judgment in the amount of the general sessions judgment, plus costs; given the de novo nature of the appeal from general sessions court to circuit court, “affirmance” of the general sessions judgment does not result in issuance of a mandate to that court as would affirmance of a circuit court judgment by the court of appeals. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

Circuit court erred in dismissing a corporate president's appeal and remanding the case to the general sessions court for execution of the general sessions judgment because the circuit court should have entered its own default judgment against the president in the amount of the general sessions judgment, plus costs, subject to execution in the circuit court. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

Neither T.C.A. § 27-5-106 nor § 27-5-107 includes dismissal of the appeal and remand to the general sessions court as an option in the event the defendant/appellant fails to appear and prosecute an appeal from the general sessions court, and neither includes a mechanism by which the circuit court remands the matter back to general sessions court once the defendant/appellant perfects an appeal; the supreme court presumes the legislature intentionally omitted such an option. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

Steve Frost Agency v. Spurlock, 859 S.W.2d 337, 1993 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1993), and its progeny, including Cantrell v. Tolley, No. W2010-02019-COA-R3-CV, 2011 WL 3556988 (Tenn. Ct. App. Aug. 11, 2011), are overruled to the extent they interpret T.C.A. §§ 27-5-106 and 27-5-107 as giving circuit courts a second option when a defendant/appellant from general sessions court fails to appear and prosecute his or her appeal, to dismiss the defendant's appeal and remand to general sessions court. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. App. LEXIS 172 (Tenn. Apr. 17, 2020).

2. —Effect on Judgment.

Where the appeal from a justice (now general sessions judge) is dismissed by the circuit court, with costs against the appellant, and the records show that the justice's judgment was not in fact, or intended to be affected, such action reinstates the judgment vacated by the appeal, and it may be proceeded on, as effectually as if a procedendo had been awarded. Anderson v. Moore, 63 Tenn. 15, 1874 Tenn. LEXIS 193 (1874).

Voluntary dismissal without prejudice pursuant to Tenn. R. Civ. P. 41.01 of appeal from general sessions court to circuit court did not require affirmance of general sessions judgment under this section. Katz v. Bilsky, 759 S.W.2d 420, 1988 Tenn. App. LEXIS 226 (Tenn. Ct. App. 1988).

Upon dismissal of an appeal for failure of appellant to appear and prosecute, it is the duty of the circuit court to render judgment for the amount of the general sessions court's judgment. However, if the circuit court judgment is for dismissal and costs only, the general sessions judgment is reinstated and may be enforced as if a procedendo had been awarded. Steve Frost Agency v. Spurlock, 859 S.W.2d 337, 1993 Tenn. App. LEXIS 213 (Tenn. Ct. App. 1993).

In Tennessee, a circuit court is not required to issue a written procedendo in order to reinstate the order of the general sessions court; rather, upon dismissal of the action, the general sessions judgment is revived as if the circuit court had, in fact, issued a mandate to the lower court. Cantrell v. Tolley, — S.W.3d —, 2011 Tenn. App. LEXIS 433 (Tenn. Ct. App. Aug. 11, 2011).

Circuit court did not err in denying appellant's motion to quash execution because it had jurisdiction and authority to issue execution to enforce its order; in affirming the judgment entered in favor of appellee in the general sessions court, the circuit court's intent was to adopt the general sessions judgment as its own because in its order denying appellant's motion to quash execution the circuit court stated that appellee was entitled to execute the general sessions judgment because it was treated as if the judgment had been rendered in the circuit court. Cantrell v. Tolley, — S.W.3d —, 2011 Tenn. App. LEXIS 433 (Tenn. Ct. App. Aug. 11, 2011).

If the circuit court's order merely dismisses the appeal and assesses costs, then the order constitutes an affirmance of the general sessions court's order in the sense that the order of dismissal functions as either a reviver of the general sessions order or as an automatic procedendo for execution in the general sessions court, and the result is the same, the general sessions judgment is affirmed, thus satisfying the mandates of T.C.A. § 27-5-107, but jurisdiction would return to the general sessions court upon dismissal of the appeal; however, if the circuit court specifically affirms the judgment of the general sessions court, then the judgment of the general sessions court becomes the judgment of the circuit court. In such a case, jurisdiction remains with the circuit court to execute its judgment. Cantrell v. Tolley, — S.W.3d —, 2011 Tenn. App. LEXIS 433 (Tenn. Ct. App. Aug. 11, 2011).

Circuit court's January 2017 judgment dismissed the appeal for lack of jurisdiction and remanded for distribution of the bond, such that the general sessions court's subsequent ruling on plaintiffs'  motion to recover was an enforcement of the prior judgment, not a modification. Bell v. Cadmus, — S.W.3d —, 2018 Tenn. App. LEXIS 757 (Tenn. Ct. App. Dec. 26, 2018).

Instead of the circuit court's issuing its own order of disbursal upon its finding that it could provide no relief, the circuit court dismissed the appeal and remanded to the general sessions court for enforcement of the original judgment, which was not error. Bell v. Cadmus, — S.W.3d —, 2018 Tenn. App. LEXIS 757 (Tenn. Ct. App. Dec. 26, 2018).

3. —Motion of Appellant.

Where the appeal from the justice's (now general sessions judge's) judgment is dismissed in the circuit court, on motion of the appellant, the circuit court, having jurisdiction, should affirm the justice's judgment, with costs; and the Supreme Court will correct the error of the circuit court in its refusal to dismiss the appeal, and to render the proper judgment of affirmance. C. B. Donaghy & Co. v. McCorkle, 118 Tenn. 73, 98 S.W. 1050, 1906 Tenn. LEXIS 80 (1907).

Circuit court did not err in dismissing a driver's appeal of a general sessions court judgment entered against her because an appellant from general sessions court could effect the involuntary dismissal of plaintiffs' additional claims asserted in circuit court by filing a notice of dismissal of appeal and motion to affirm general sessions judgment at any time before trial in the circuit court; no rule, statute, or court decision changes the long-standing principle that the appellant from a judgment of the general sessions court may dismiss his or her appeal at any time prior to trial in circuit court, which action necessitates the dismissal of the circuit court action and the affirmance or reinstatement of the general sessions judgment. Crowley v. Thomas, — S.W.3d —, 2010 Tenn. App. LEXIS 50 (Tenn. Ct. App. Jan. 27, 2010), aff'd, 343 S.W.3d 32, 2011 Tenn. LEXIS 599 (Tenn. June 17, 2011).

Circuit court properly dismissed defendant's appeal and affirmed the judgment of the general sessions court pursuant to T.C.A. § 27-5-107 because to preserve plaintiff's original cause of action after dismissal, plaintiff had to perfect an appeal to the circuit court as prescribed by T.C.A. § 27-5-108, but plaintiff did not appeal the judgment, and his cause of action proceeded to the circuit court only by virtue of defendant's appeal; while defendant's appeal was pending, plaintiff was free to amend his complaint pursuant to T.C.A. § 16-15-729, however, defendant could dismiss the appeal without the consent and over the objection of plaintiff, and the dismissal of defendant's appeal removed the case from the circuit court and was fatal to plaintiff's amended cause of action. Crowley v. Thomas, 343 S.W.3d 32, 2011 Tenn. LEXIS 599 (Tenn. June 17, 2011).

4. —Want of Jurisdiction.

Where the papers do not show that an appeal from the justice's (now general sessions judge's) judgment was prayed and granted, or where they show that it was prayed and granted after the expiration of the time allowed by statute for appealing, the proper judgment in the circuit court dismissing such appeal, on the appellee's motion, and the proper judgment in the appellate or Supreme Court, is not an affirmance of the justice's judgment, but the award of a procedendo to the justice, and for costs of such appeal against the appellant. Such appeal gives no jurisdiction to the circuit court, or to the appellate or Supreme Court, except to award the procedendo and to give judgment for costs. Jackson v. Baxter, 73 Tenn. 344, 1880 Tenn. LEXIS 135 (1880); Douglass v. Neguelona, 88 Tenn. 769, 14 S.W. 283, 1890 Tenn. LEXIS 19 (1890); C. B. Donaghy & Co. v. McCorkle, 118 Tenn. 73, 98 S.W. 1050, 1906 Tenn. LEXIS 80 (1907).

5. Failure to Return Papers.

Failure of justice to return papers within first two days of term to which appeal is made returnable as provided by Acts 1809, ch. 63, § 2 did not bar an appeal if papers were returned during term, since Acts 1811, ch. 119, § 2 by implication repealed Acts 1809, ch. 63, § 2 allowing affirmance of judgment if not filed within first two days of term. Humphrey v. Humphrey, 31 Tenn. 154, 1851 Tenn. LEXIS 38 (1851).

Where an appeal is prayed from a judgment of a justice of the peace (now general sessions judge), it was never the intention of the lawmakers to deprive a litigant, who was present in court at the first term demanding a trial or a hearing upon the merits merely because the magistrate for some reason has not filed the papers within the five day period. Nash-Echoff Motor Co. v. Kettlewell Bros., 160 Tenn. 186, 22 S.W.2d 231, 1929 Tenn. LEXIS 90 (1929).

Where appeal was perfected within the ten days provided by § 27-5-108 but appeal papers were not filed in circuit court the next term after trial in general sessions court, appeal papers subsequently filed became functus officio and appeal was properly dismissed for failure to prosecute. City Finance Co. v. Harris, 60 Tenn. App. 180, 445 S.W.2d 467, 1968 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1968).

Circuit court properly dismissed a driver's appeal of a traffic conviction, because, while the driver filed a pauper's oath in a circuit court, T.C.A. §§ 27-5-103, 27-5-105 required a bond or oath be filed in the city court in order to perfect the appeal; consequently, the circuit court did not gain jurisdiction over the matter. Tubwell v. City of Memphis, 413 S.W.3d 77, 2013 Tenn. App. LEXIS 187 (Tenn. Ct. App. Mar. 20, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 662 (Tenn. Aug. 13, 2013).

NOTES TO DECISIONS

1. Construction.

This section does not amend § 27-5-101 which formerly governed the time for appeal from decisions of courts of general sessions but established an entirely new period of time for such appeals and left undisturbed the time from which appeals may be taken under § 27-5-101 from decisions of an officer of a municipality. Biggs v. Memphis Loan & Thrift Co., 215 Tenn. 294, 385 S.W.2d 118, 1964 Tenn. LEXIS 566 (1964).

A provision for de novo trial in the circuit court must be taken to mean a de novo trial as to the parties before that court by appeal. Braverman v. Roberts Constr. Co., 748 S.W.2d 433, 1987 Tenn. App. LEXIS 3114 (Tenn. Ct. App. 1987).

2. Application.

Record reflected that the insureds, in opposition to the motion for summary judgment, relied upon the deposition of an expert consulting engineer, whose testimony controverted the deposition testimony of the insurer's expert. Under those circumstances, there was a genuine dispute as to material facts, and summary judgment was not appropriate; the order of the chancery court granting summary judgment was vacated, and the order of the circuit court transferring the case to chancery court was vacated, and the case was remanded to the circuit court for further proceedings in a trial de novo as provided by T.C.A. § 27-5-108. Miller v. State Farm Ins. Co., — S.W.3d —, 2004 Tenn. App. LEXIS 846 (Tenn. Ct. App. Dec. 17, 2004).

3. Time for Appeal.

Fact that § 15-1-101 declares Saturdays to be half-holidays on which public offices may be closed did not require that Saturdays be counted as half days in computing the ten-day period for appeal provided by this section. Biggs v. Memphis Loan & Thrift Co., 215 Tenn. 294, 385 S.W.2d 118, 1964 Tenn. LEXIS 566 (1964).

In computing the ten-day period for appeal under this section the general provisions of § 1-3-102 are applicable and Sunday is excluded only if it is the last day. Biggs v. Memphis Loan & Thrift Co., 215 Tenn. 294, 385 S.W.2d 118, 1964 Tenn. LEXIS 566 (1964).

Owner's petition to rehear sought to set aside the General Sessions Court judgment entered on July 28, 2003, in favor of the utility company, but regardless of whether the petition was filed within the ten-day period for appeal, the General Sessions Court had no statutory authority to grant the relief requested and the petition did not toll the appeal period; the ten-day period for seeking a de novo review in the circuit court began to run when the general sessions final judgment was entered, and because the owner's appeal was filed outside the ten-day time period, the appeal was untimely and it was properly dismissed. Jackson Energy Auth. v. Diamond, 181 S.W.3d 735, 2005 Tenn. App. LEXIS 22 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 700 (Tenn. Aug. 22, 2005).

When defendant challenged a general sessions court's finding that he was in violation of implied consent laws, defendant failed to file a timely appeal to a criminal court because the appeal was not filed within 10 days. State v. Smith, 278 S.W.3d 325, 2008 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 11, 2008).

Condominium owner had 10 days to appeal to the circuit court from an adverse decision in the general sessions court; however, the condominium owner did not appeal, but instead waited approximately eight months to file suit in the chancery court raising the same claims. The matter was barred by res judicata. Graham v. Walldorf Prop. Mgmt., — S.W.3d —, 2009 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 19, 2009).

When defendants failed to appeal to a Circuit Court, pursuant to T.C.A. § 27-5-108, and entered into an agreements with plaintiff to make installment payments on the judgments, thereby rendering the judgments final and unappealable, defendants' appeal from the denial of their Tenn. R. Civ. P. 60.02 motion in the General Sessions Court constituted an attempt to bootstrap their untimely Rule 60.02 motion to negate the finality of the judgments against them and establish jurisdiction in the Circuit Court. First Cmty. Fin. Servs. v. Simmons, — S.W.3d —, 2011 Tenn. App. LEXIS 316 (Tenn. Ct. App. June 10, 2011).

Homeowners did not file a timely appeal from the general sessions judgment, and thus they were time-barred from pursuing an appeal from the judgment of the general sessions court. Elswick v. Jackson, — S.W.3d —, 2015 Tenn. App. LEXIS 883 (Tenn. Ct. App. Oct. 29, 2015).

Property owner's motion to set aside was timely filed and tolled the time for perfecting a de novo appeal to the circuit court because the owner filed his motion the day after the general sessions court entered its judgment for possession. Wells Fargo Bank, N.A. v. Dorris, — S.W.3d —, 2017 Tenn. App. LEXIS 836 (Tenn. Ct. App. Dec. 28, 2017).

4. Dismissal of Appeal.

As a general rule, an appellant may have his appeal dismissed at any time the cause remains within the jurisdiction of the appellate court, and the appellee cannot object, nor is his consent required. Gill v. State Farm Ins. Co., 958 S.W.2d 350, 1997 Tenn. App. LEXIS 431 (Tenn. Ct. App. 1997).

Circuit court erred in dismissing an appeal of a legal malpractice action merely because appellant entered the wrong docket number on her notice of appeal and appeal bond; given that the notice indicated the date of the judgment she was appealing, the incorrect docket number was merely a technical error. Johnson v. Ragsdale, 158 S.W.3d 426, 2004 Tenn. App. LEXIS 432 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 77 (Tenn. Jan. 24, 2005).

Circuit court properly dismissed defendant's appeal and affirmed the judgment of the general sessions court pursuant to T.C.A. § 27-5-107 because to preserve plaintiff's original cause of action after dismissal, plaintiff had to perfect an appeal to the circuit court as prescribed by T.C.A. § 27-5-108, but plaintiff did not appeal the judgment, and his cause of action proceeded to the circuit court only by virtue of defendant's appeal; while defendant's appeal was pending, plaintiff was free to amend his complaint pursuant to T.C.A. § 16-15-729, however, defendant could dismiss the appeal without the consent and over the objection of plaintiff, and the dismissal of defendant's appeal removed the case from the circuit court and was fatal to plaintiff's amended cause of action. Crowley v. Thomas, 343 S.W.3d 32, 2011 Tenn. LEXIS 599 (Tenn. June 17, 2011).

In a case stemming from property damage, a trial court did not err by allowing a property owner to dismiss the lawsuit following an appeal by an adjacent landowner from a general sessions court judgment in favor of the property owner; a voluntary nonsuit was permitted at any time before the trial of a cause, and there was no authority holding that the party not filing an appeal from general sessions court was not allowed to nonsuit the action in circuit court. An argument that it was unfair to allow the owner to nonsuit the action and then potentially refile his claim in circuit court, seeking a larger amount of damages, because he did not appeal the general sessions judgment was rejected under the savings statute. Layman v. Acor, — S.W.3d —, 2016 Tenn. App. LEXIS 46 (Tenn. Ct. App. Jan. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 450 (Tenn. June 23, 2016).

5. Filing of Appeal Papers.

Where appeal was perfected within the ten days provided by § 27-5-108 but appeal papers were not filed in circuit court the next term after trial in general sessions court, appeal papers subsequently filed became functus officio and appeal was properly dismissed for failure to prosecute. City Finance Co. v. Harris, 60 Tenn. App. 180, 445 S.W.2d 467, 1968 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1968).

The use of a facsimile (fax) to file an appeal is not a valid method of filing until it has been approved on a statewide basis by the supreme court. Love v. College Level Assessment Servs., 928 S.W.2d 36, 1996 Tenn. LEXIS 499 (Tenn. 1996).

As appellants filed an appeal of a decision of the General Session Court to the Circuit Court, arising from a vehicle accident, but they failed to file an appeal bond pursuant to T.C.A. §§ 27-5-103 and 27-5-108(a)(1), the attempted appeals due were properly dismissed due to lack of subject matter jurisdiction; the failure to timely file an appeal bond was not merely an informality under T.C.A. § 16-15-729. Jacob v. Partee, 389 S.W.3d 339, 2012 Tenn. App. LEXIS 555 (Tenn. Ct. App. Aug. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 924 (Tenn. Dec. 12, 2012), overruled, Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled in concurring opinion at Bernatsky v. Designer Baths & Kitchens, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 106 (Tenn. Ct. App. Feb. 15, 2013), overruled, Meacham v. Starnes, — S.W.3d —, 2013 Tenn. App. LEXIS 135 (Tenn. Ct. App. Feb. 27, 2013), overruled, Andrews v. Clemmer, — S.W.3d —, 2013 Tenn. App. LEXIS 145 (Tenn. Ct. App. Feb. 28, 2013), overruled, Brown v. Shtaya, — S.W.3d —, 2013 Tenn. App. LEXIS 162 (Tenn. Ct. App. Mar. 6, 2013), overruled, Moore v. Correct Care Solutions, LLC, — S.W.3d —, 2013 Tenn. App. LEXIS 199 (Tenn. Ct. App. Mar. 25, 2013), overruled, Griffin v. Campbell Clinic, P.A., — S.W.3d —, 2013 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 31, 2013), overruled, Peterson v. Lepard, — S.W.3d —, 2014 Tenn. App. LEXIS 153 (Tenn. Ct. App. Mar. 20, 2014), overruled, Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

6. Criminal Cases.

Where defendant was acquitted on charge of violation of municipal ordinance in general sessions court, metropolitan government was not entitled to appeal such dismissal to circuit court for trial de novo under the provisions of the metropolitan charter or § 27-5-108, since double jeopardy provisions of state and federal constitutions precluded such second trial for the same offense. Metropolitan Government of Nashville & Davidson County v. Miles, 524 S.W.2d 656, 1975 Tenn. LEXIS 674 (Tenn. 1975).

Petition for a writ of certiorari to vacate a probation revocation by the general sessions court, which was sought one year after the revocation, was properly denied because the petitioner failed to offer an excuse why an appeal of the revocation was not timely filed. State v. Hartwell, 124 S.W.3d 629, 2003 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 2003).

7. Paternity Actions.

In cases to establish paternity brought under the bastardy statute, the circuit court had no jurisdiction unless the defendant timely demanded a jury trial under § 36-2-106 [Repealed], and the exclusive method of appellate review was that provided by § 36-2-114 [Repealed] which was to the Court of Appeals. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

The legislature never intended to make the juvenile court a general sessions court; the intention was to transfer jurisdiction of the juvenile court to the general sessions court and to make the general sessions court a juvenile court when the subject matter before the court was within the jurisdiction conferred upon juvenile courts. Thus, the laws dealing with appeals from the general sessions court when that court is exercising nonjuvenile court jurisdiction were not controlling in an action to establish paternity; the controlling laws were the appellate procedures provided for juvenile courts. State ex rel. Winberry v. Brooks, 670 S.W.2d 631, 1984 Tenn. App. LEXIS 2752 (Tenn. Ct. App. 1984).

8. Forcible Entry and Detainer.

This section, and not § 29-18-128, controls the time limitation on an appeal from a general sessions court judgment in a forcible entry and detainer action. Steinhouse v. Neal, 723 S.W.2d 625, 1987 Tenn. LEXIS 817 (Tenn. 1987).

Following the expiration of the automatic stay of the chancery court's April 16, 2017 judgment, appellant failed to obtain a stay pending appeal and thus the judgment became enforceable on May 15, 2017 and remained enforceable when appellee sought to enforce the judgment by filing a detainer summons in the general sessions court and when appellant appealed to the circuit court. The trial court had subject matter jurisdiction to adjudicate this detainer action. Bottorff v. Sears, — S.W.3d —, 2019 Tenn. App. LEXIS 259 (Tenn. Ct. App. May 23, 2019).

9. Rules of Appellate Procedure.

Proceedings of general sessions courts are not governed by the Rules of Appellate Procedure. State v. Osborne, 712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604 (Tenn. Crim. App. 1986).

10. Orders and Judgments.

The wording of this section which allows an appeal as of right to the circuit (or criminal) court within 10 days from the date of the judgment means that before such an appeal can be taken there must have been a final judgment entered in the general sessions court. State v. Osborne, 712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604 (Tenn. Crim. App. 1986).

An appeal under this section cannot be had for the review of interlocutory orders. State v. Osborne, 712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604 (Tenn. Crim. App. 1986).

11. Right to File Amended Pleadings.

Cases appealed from the general sessions court to the circuit court pursuant to T.C.A. § 16-15-279 should be treated for all purposes as if they originated in the circuit court. The parties should be permitted to file amended pleadings to the fullest extent permitted by Tenn. R. Civ. P. 15 without regard to the general sessions court's monetary limits as doing so will promote judicial economy by enabling the parties to resolve their disputes on the merits in a single proceeding. B & G Constr. v. Polk, 37 S.W.3d 462, 2000 Tenn. App. LEXIS 249 (Tenn. Ct. App. 2000), rehearing denied, B & G Constr., Inc. v. Polk, — S.W.3d —, 2000 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 12, 2000).

Where defendant's appeal to the circuit court opened the door for plaintiff to include relief not available in the general sessions proceeding, the circuit court acted properly in awarding plaintiff in landlord and tenant dispute not only possession, but also damages and discretionary costs. B & G Constr. v. Polk, 37 S.W.3d 462, 2000 Tenn. App. LEXIS 249 (Tenn. Ct. App. 2000), rehearing denied, B & G Constr., Inc. v. Polk, — S.W.3d —, 2000 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 12, 2000).

12. Jurisdiction.

A chancery court has no subject matter jurisdiction to hear an appeal from general sessions court. Graves v. Kraft Gen. Foods, 45 S.W.3d 584, 2000 Tenn. App. LEXIS 692 (Tenn. Ct. App. 2000).

Trial court correctly concluded that it lacked jurisdiction to entertain a driver's de novo appeal because: (1) The driver's argument that a general sessions court's judgment was adverse to him because his medical bills alone dwarfed the amount awarded by the general sessions court was completely irrelevant to the jurisdictional issue; and (2) The judgment of the general sessions court was not “adverse” to the driver within the meaning of T.C.A. § 27-5-108(a)(1) because the court awarded the driver everything he requested since the driver's civil warrant requested an award of damages under $15,000. Benson v. Herbst, 240 S.W.3d 235, 2007 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 18, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 874 (Tenn. Sept. 17, 2007).

Judgment is not “adverse” within the meaning of T.C.A. § 27-5-108(a)(1) where the more favorable result desired by the party seeking to appeal is something that was patently beyond the power of the general sessions court to grant. Benson v. Herbst, 240 S.W.3d 235, 2007 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 18, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 874 (Tenn. Sept. 17, 2007).

The issue under both T.C.A. § 27-5-108(a)(1) and T.C.A. § 27-5-101 is whether the party seeking to appeal secured a result in the general sessions court that was less favorable than what he or she requested, and the more favorable result desired must be something that was within the power of the general sessions court to grant; the question is not whether the judgment was “adverse” or the party was “dissatisfied” in some abstract, metaphysical sense, but rather whether the judgment was “adverse” or the party “dissatisfied” within the context of a general sessions court proceeding. Benson v. Herbst, 240 S.W.3d 235, 2007 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 18, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 874 (Tenn. Sept. 17, 2007).

Tenn. R. Civ. P. 59, 60 are applicable to de novo appeals from general sessions court to circuit court; as in any other circuit court case, these rules reflect the circuit courts'  jurisdiction to correct earlier orders, even after an erroneous remand to general sessions court, within the parameters set out in those rules. Ken Smith Auto Parts v. Thomas, — S.W.3d —, 2020 Tenn. LEXIS 147 (Tenn. Apr. 17, 2020).

Dismissal of a parent's untimely appeal for lack of subject matter jurisdiction when the parent failed to file an appeal within ten days of the general sessions court's order of protection, as required by statute, was appropriate because the writ of error which the parent filed after the expiration of the time limit was no longer a viable method of appeal in the State of Tennessee. Furthermore, statutes providing for a period of more than ten days to file an appeal were not applicable to the matter. New v. Dumitrache, — S.W.3d —, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

13. Clerical Error.

Notice of appeal should sufficiently describe or specify the judgment or order appealed from, but a mistake in designating the judgment appealed from is not fatal, so long as the intent to appeal from a specific ruling can fairly be inferred and so long as the other party is not misled or prejudiced. Johnson v. Ragsdale, 158 S.W.3d 426, 2004 Tenn. App. LEXIS 432 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 77 (Tenn. Jan. 24, 2005).

Notice of appeal is sufficient if, although defective, the notice adequately describes or identifies the judgment or order, and appellee is not misled, in which case the court will disregard mere clerical errors, surplusage, and other mistakes. Johnson v. Ragsdale, 158 S.W.3d 426, 2004 Tenn. App. LEXIS 432 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 77 (Tenn. Jan. 24, 2005).

14. Bond on Appeal.

Patient’s cash bond was sufficient to perfect an appeal from a general sessions court to a circuit court because the bond vested jurisdiction in the circuit court since T.C.A. § 27-5-103 expressed no limitation as to the type of bond required, so a surety bond in an unlimited amount did not solely provide the “good security” required by T.C.A. § 27-5-103(a). Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 2014 Tenn. LEXIS 566 (Tenn. July 21, 2014).

NOTES TO DECISIONS

1. Abolishment of Writ.

With the promulgation of T.R.A.P. 3(d) the supreme court announced the abolition of the writ of error as an appellate procedure; this chapter, as far as it is in conflict with this rule, is effectively repealed, and appellate review by petition for a writ of error no longer exists. Haynes v. McKenzie Memorial Hospital, 667 S.W.2d 497, 1984 Tenn. App. LEXIS 3274 (Tenn. Ct. App. 1984).

Dismissal of a parent's untimely appeal for lack of subject matter jurisdiction when the parent failed to file an appeal within ten days of the general sessions court's order of protection, as required by statute, was appropriate because the writ of error which the parent filed after the expiration of the time limit was no longer a viable method of appeal in the State of Tennessee. Furthermore, statutes providing for a period of more than ten days to file an appeal were not applicable to the matter. New v. Dumitrache, — S.W.3d —, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

2. Generally.

A writ of error has no place in the law unless there has been an original suit. It is a suit on the record in the original case and a continuance thereof. Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S.W. 100, 1891 Tenn. LEXIS 28 (1891); Atlanta Guano Co. v. Phipps, 41 S.W. 1087, 1897 Tenn. Ch. App. LEXIS 25 (Tenn. Ch. App. 1897).

A writ of error is rather a continuation of the original suit, and is not a new suit in the sense of the service of process. Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S.W. 100, 1891 Tenn. LEXIS 28 (1891); Duke v. Helms, 100 Tenn. 249, 46 S.W. 761, 1897 Tenn. LEXIS 108 (1898); Tipton v. Tipton, 118 Tenn. 691, 104 S.W. 237, 1907 Tenn. LEXIS 71 (1907).

This section and § 27-6-103 regulate the procedure upon appeal to the circuit or chancery court. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

While a writ of error is in most respects the continuation of an old case, it also partakes of the nature of a new suit, in that it is a proceeding begun with notice issuing out of the reviewing court. The party against whom it is sought must not be deprived of the right to show that petitioner is not entitled to the writ by reason of waiver or estoppel. Love Hardware Co. v. Connatser, 27 Tenn. App. 302, 180 S.W.2d 129, 1943 Tenn. App. LEXIS 143 (Tenn. Ct. App. 1944).

3. —Scope of Review.

Scope of review on writ of error is restricted to grounds set forth in motion for new trial. Bennett v. Monroe County Motor Co., 191 Tenn. 345, 233 S.W.2d 55, 1950 Tenn. LEXIS 581 (1950).

4. —Relief to be Obtained Unimportant.

The parties are entitled to the writ without reference to the relief they may be able to obtain by it. State v. Merchants' Ins. & Trust Co., 27 Tenn. 235, 1847 Tenn. LEXIS 75 (1847); Caldwell v. Hodsden's Heirs, 69 Tenn. 305, 1878 Tenn. LEXIS 91 (1878); Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

5. —Errors Affecting Nonprosecuting Defendants.

The appellate court will not notice errors which affect only the defendants who do not join in the prosecution of the writ of error prosecuted by a codefendant entitled to no relief. Lewis v. Baker, 38 Tenn. 385, 1858 Tenn. LEXIS 197 (1858).

6. Construction with Other Acts.

7. —Divorce.

An “appeal” under § 36-830 (now § 36-4-123) is the only mode of reviewing errors in a divorce suit and a writ of error under this section is improper. Stargel v. Stargel, 21 Tenn. App. 193, 107 S.W.2d 520, 1937 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1937).

8. —Workers' Compensation.

Where employer in compensation proceeding failed to perfect an appeal but subsequently filed record for writ of error scope of review was restricted to an appeal in the nature of a writ of error. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

9. Parties to Prosecution.

10. —Generally.

The writ of error must be prosecuted in the name of all the parties to the judgment or decree, unless there be a summons and severance. Patterson v. Butterworth, 12 Tenn. 157, 12 Tenn. 158, 1833 Tenn. LEXIS 30 (1833); Huff & Wallin v. Miller & Woods, 32 Tenn. 85, 1852 Tenn. LEXIS 21 (1852); Garrett v. Cocke, 67 Tenn. 274, 1874 Tenn. LEXIS 371 (1874).

Whether writ of error may be prosecuted to reverse a void judgment in favor of the plaintiff, so that he may proceed anew. Officer v. Price, 13 Tenn. 284, 13 Tenn. 285, 1833 Tenn. LEXIS 164 (1833).

Writ of error may be prosecuted by personal representatives and by heirs. Huff & Wallin v. Miller & Woods, 32 Tenn. 85, 1852 Tenn. LEXIS 21 (1852).

Writ of error may be prosecuted by surviving defendant, and by personal representative of the deceased defendant. Huff & Wallin v. Miller & Woods, 32 Tenn. 85, 1852 Tenn. LEXIS 21 (1852); Tipton v. Tipton, 118 Tenn. 691, 104 S.W. 237, 1907 Tenn. LEXIS 71 (1907).

Practice and procedure in the prosecution of a writ of error by the personal representative of a deceased judgment defendant. Huff & Wallin v. Miller & Woods, 32 Tenn. 85, 1852 Tenn. LEXIS 21 (1852); Tipton v. Tipton, 118 Tenn. 691, 104 S.W. 237, 1907 Tenn. LEXIS 71 (1907).

No reversal upon writ of error for errors in favor of or not adversely affecting the prosecutor of the writ. Moreau v. John L. Saffarans & Co., 35 Tenn. 595, 1856 Tenn. LEXIS 33 (1856).

The general rule is that no one but a party upon the record can prosecute a writ of error, because those not parties cannot, in contemplation of law, be possibly affected by the decree or judgment. Moreau v. John L. Saffarans & Co., 35 Tenn. 595, 1856 Tenn. LEXIS 33 (1856); Linch v. Linch, 69 Tenn. 526, 1878 Tenn. LEXIS 132 (1878).

A writ of error is in the nature of a new suit, and it cannot be prosecuted in the name of a dead party. Squibb v. McFarland, 58 Tenn. 563, 1872 Tenn. LEXIS 301 (1872).

In a contested will case, all parties interested in the result of the litigation, such as heirs and distributees who would be concluded by the litigation, may prosecute a writ of error, though not parties of record. Linch v. Linch, 69 Tenn. 526, 1878 Tenn. LEXIS 132 (1878).

The writ may be sued out by next friend. Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

11. —Persons Interested.

Our Supreme Court has always construed these Code sections as confining the right of appeal to persons interested, or persons aggrieved. Harmon v. Harmon, 141 Tenn. 64, 206 S.W. 333, 1918 Tenn. LEXIS 68 (1918).

A receiver's bondsman against whom a judgment has been rendered is a party to the judgment and may take a writ of error. Roy Newman Cigar Co. v. Murphy, 2 Tenn. App. 321, — S.W. —, 1926 Tenn. App. LEXIS 28 (Tenn. Ct. App. 1926).

Where the petitioners for a writ of error had sold, transferred and assigned any and all interest in the litigation before petitioning for the writ, the writ was denied. Love Hardware Co. v. Connatser, 27 Tenn. App. 302, 180 S.W.2d 129, 1943 Tenn. App. LEXIS 143 (Tenn. Ct. App. 1944).

The right afforded by this section is confined to persons interested or persons aggrieved. Cummings v. Patterson, 54 Tenn. App. 75, 388 S.W.2d 157, 1964 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1964).

12. When Available.

An appeal or an appeal in nature of a writ of error is an alternative remedy to a writ of error and a party is not entitled to have his case reviewed twice by the appellate court. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

A writ of error lies as a matter of right from a final judgment in all cases where an appeal in the nature of a writ of error would have lain. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963); Owen v. Holdway, 57 Tenn. App. 713, 425 S.W.2d 623, 1967 Tenn. App. LEXIS 258 (Tenn. Ct. App. 1967).

Appeal in the nature of a writ of error under § 27-3-106 [repealed] is an alternative procedure and a resort to both is not permitted. Hamby v. Millsaps, 544 S.W.2d 360, 1976 Tenn. LEXIS 515 (Tenn. 1976).

Where appeal in the nature of a writ of error under § 27-3-106 [repealed] is fully perfected by timely filing of the appeal bond or pauper's oath and the transcript of the record, the remedy of writ of error is no longer available, even though a review of the merits of the appeal is not obtained. Hamby v. Millsaps, 544 S.W.2d 360, 1976 Tenn. LEXIS 515 (Tenn. 1976).

13. —Generally.

Writ of error lies, of right, where an appeal, or appeal in the nature of a writ of error would lie, and sometimes where an appeal is properly refused. Beasley v. Ferriss, 69 Tenn. 461, 1878 Tenn. LEXIS 118 (1878).

Father's petition challenged both the grant of the orders of protection and the award of attorney fees, and although the errors of fact were improperly raised in the writ of error, the chancery court did not lack subject matter jurisdiction; the absence of a timely appeal was immaterial, the father properly filed the writ of appeal in chancery court, and under the order of protection statutes, appeals were to the circuit or chancery court of the county. New v. Dumitrache, — S.W.3d —, 2019 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 12, 2019).

14. —Appellants Failing to Give Bond.

Where appellants or some of them fail to perfect their appeal, by the execution of an appeal bond, they have a remedy by writ of error. Duval v. Brady, 72 Tenn. 528, 1880 Tenn. LEXIS 57 (1880).

15. —Payment of Judgment.

Where the chancellor had denied an appeal before payment of a judgment embodied in the decree, payment of the judgment does not preclude review by writ of error; otherwise the party aggrieved would be remediless. Gaines v. Fagala, 42 S.W. 462, 1897 Tenn. Ch. App. LEXIS 58 (1897).

16. —Collection of Judgment.

A complainant who has taken and abandoned an appeal may, by execution, collect his decree in the court below, and then take a writ of error, and increase the amount of his decree. Bond v. N. Greenwald & Co., 51 Tenn. 453, 1871 Tenn. LEXIS 187 (1871).

17. —Appeal in Error Abandoned.

Appeal and writ of error are alternative remedies, and a party may not resort to both. A writ of error will not lie in behalf of a party who had perfected an appeal but abandoned same. Turner v. South Pittsburg Lumber & Coal Co., 14 Tenn. App. 297, — S.W.2d —, 1931 Tenn. App. LEXIS 39 (Tenn. Ct. App. 1931); Crowe v. Birmingham & N. W. R. Co., 156 Tenn. 349, 1 S.W.2d 781, 1927 Tenn. LEXIS 127 (1928).

18. —Appeal in Error Lost.

Where an appeal in the nature of a writ of error, prayed and granted, has been lost by failure to comply with the requirements of law, the delinquent party may sue out a writ of error within the time prescribed. Covington v. Neilson, 14 Tenn. 474, 14 Tenn. 475, 1834 Tenn. LEXIS 117 (1834); Crowe v. Birmingham & N. W. R. Co., 156 Tenn. 349, 1 S.W.2d 781, 1927 Tenn. LEXIS 127 (1928).

19. —Certiorari Wrongfully Refused.

Writ of error from improper refusal to grant a certiorari to bring a case into the circuit court for review. Lawson v. Scott, 9 Tenn. 92, 1825 Tenn. LEXIS 12 (1825); Bob v. State, 10 Tenn. 173, 1826 Tenn. LEXIS 10 (1826).

20. —Appeal Not Perfected.

While prayer for appeal and order allowing same is necessary to perfect appeal where record on file in Supreme Court contains a bond for costs the case would be treated as in the Supreme Court on a writ of error. Chumbley v. Duck River Electric Membership Corp., 203 Tenn. 243, 310 S.W.2d 453, 1958 Tenn. LEXIS 296 (1958).

Where a certified copy of the record is on file in the Court of Appeals, and it contains a proper pauper's oath, it is incumbent on the court to treat the case as before it on a writ of error. Sanders v. Loyd, 51 Tenn. App. 49, 364 S.W.2d 369, 1960 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1960), superseded by statute as stated in, Calhoun v. State, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 7, 1994).

Where an appeal or an appeal in nature of a writ of error is not perfected because of failure to file an appeal bond in due time, a writ of error lies as a matter of right. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963); Green Meadow Park v. American Heritage Life Ins. Co., 540 S.W.2d 267, 1976 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1976).

Where appeal was dismissed for failure to file bond, Court of Appeals would not affirm judgment upon such dismissal but would dismiss without prejudice to right to apply for writ of error. City of Paris v. Browning, 55 Tenn. App. 92, 396 S.W.2d 367, 1965 Tenn. App. LEXIS 243 (Tenn. Ct. App. 1965).

Writ of error is available where the appealing party has lost or not availed himself of the remedy of appeal in the nature of a writ of error under § 27-3-106 [repealed] by his failure to perfect the appeal by (1) timely filing an appeal bond or oath in forma pauperis and (2) timely filing of a transcript of the record in the appellate court. Hamby v. Millsaps, 544 S.W.2d 360, 1976 Tenn. LEXIS 515 (Tenn. 1976).

21. Requisites to Writ.

Present practice requires both the “prayer” and the “grant” of the statutory appeal in the nature of a writ of error; otherwise the appealing party must seek review by the ancient “writ of error.” Saunders v. McKenzie, 572 S.W.2d 653, 1978 Tenn. LEXIS 659 (Tenn. 1978).

22. —Notice Unnecessary.

A writ of error is in the nature of a new suit, and may be obtained, as of right, by any person entitled to it, exactly as he may sue out a summons in an ordinary action upon compliance with the prescribed requirements, without notice of the application, if done within the time prescribed by law for its issuance. Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880); Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

23. —Final Judgment or Decree.

Writ of error would not lie from order of trial court refusing to increase bonds of plaintiffs filed in actions for malicious prosecution and false imprisonment since there was no final judgment. Whitfield v. Greer, 62 Tenn. 78, 1873 Tenn. LEXIS 144 (1873).

Writ of error lies only from a final judgment or decree, where an appeal would have lain, as a matter of right; it does not lie either in a civil or criminal case, except from a final judgment. Hume v. Commercial Bank of Knoxville, 69 Tenn. 220, 1878 Tenn. LEXIS 74 (1878); Beasley v. Ferriss, 69 Tenn. 461, 1878 Tenn. LEXIS 118 (1878); Brewer v. State, 74 Tenn. 198, 1880 Tenn. LEXIS 232 (1880); Gibson v. Widener, 85 Tenn. 16, 1 S.W. 497, 1886 Tenn. LEXIS 4 (1886); Belcher v. Steele, 97 Tenn. 406, 37 S.W. 135, 1896 Tenn. LEXIS 160 (1896).

In suit for possession of real estate, where court granted complainants a decree and ordered a writ to put complainant in possession, such decree was final, though matters in nature balancing rents, taxes, and improvements remained for separate adjustment. Rawley v. Burris, 47 S.W. 176, 1898 Tenn. Ch. App. LEXIS 37 (1898).

Writ of error will not lie where decree shows on its face that the cause was retained in lower court for further proceedings. Cockrill v. Peoples Sav. Bank, 155 Tenn. 342, 293 S.W. 996, 1926 Tenn. LEXIS 53 (1927).

Where a decree left open the sale of the property attached upon which a lien was affixed and left open a decision under reference as to ownership of the property attached it was not a final decree and no writ of error would lie. Vineyard v. Vineyard, 26 Tenn. App. 232, 170 S.W.2d 917, 1942 Tenn. App. LEXIS 50 (1942).

24. —Whole Cause.

Writ of error will not lie to bring up a decree disposing of part of the defense of one defendant, or settling the rights of one of several defendants. Hume v. Commercial Bank of Knoxville, 69 Tenn. 220, 1878 Tenn. LEXIS 74 (1878).

25. —Motion for New Trial.

Successful party may not file record for writ of error in a law court without filing motion for new trial. Bennett v. Monroe County Motor Co., 191 Tenn. 345, 233 S.W.2d 55, 1950 Tenn. LEXIS 581 (1950).

Where a motion for a new trial is a prerequisite to appellate review, such a motion and a denial thereof is a prerequisite for a writ of error and must be shown on the application's face. Whisnant v. State, 532 S.W.2d 572, 1975 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1975).

26. Staying Second Suit Pending Disposition of Writ of Error.

Pending writ of error to review a decree of chancery court, which sustained a demurrer to the bill, on the ground that the court had no jurisdiction, and motion to require the complainant to elect whether it will further prosecute the chancery suit or another action pending in a law court for the same cause of action, brought after the dismissal of the chancery bill and before the writ of error was sued out, will be denied, for the proper practice in such case is to apply for an order in the second suit to stay proceedings therein until the writ of error is disposed of. Sanford-Day Iron Works v. Enterprise Foundry & Machine Co., 138 Tenn. 437, 198 S.W. 258, 1917 Tenn. LEXIS 53 (1917).

27. Appeal — Record of Whole Cause.

Writ of error from a chancery decree takes up the whole cause, so far that compensation as agent, denied below to the defendant, will be awarded him in the appellate court against the complainant, his principal, who sought a recovery and account in the matter of the agency. Wood v. Cooper, 49 Tenn. 441, 1871 Tenn. LEXIS 31 (1871).

Writ of error brings the whole record, including a petition for writ of error coram nobis, and the proceedings thereon, and all errors will be examined into, and corrected by that court, either in the record before the writ of error coram nobis was sued out, or afterwards. Carney v. John McDonald Co., 1 Shannon's Cases 235 (1872).

Where appellants, upon oral argument, asked for a writ of error if their appeal was invalid for any reason, the appeal was broad enough to bring up the judgment for review, as well as the order overruling motion for new trial. Ragsdale v. Hill, 37 Tenn. App. 671, 269 S.W.2d 911, 1954 Tenn. App. LEXIS 99 (Tenn. Ct. App. 1954).

NOTES TO DECISIONS

1. Construction with Other Sections.

This section and § 27-6-101 regulate the procedure upon appeal to the circuit or chancery court. In re Fox Estate, 161 Tenn. 432, 33 S.W.2d 82, 1930 Tenn. LEXIS 25 (1930).

Dismissal of a parent's untimely appeal for lack of subject matter jurisdiction when the parent failed to file an appeal within ten days of the general sessions court's order of protection, as required by statute, was appropriate because the writ of error which the parent filed after the expiration of the time limit was no longer a viable method of appeal in the State of Tennessee. Furthermore, statutes providing for a period of more than ten days to file an appeal were not applicable to the matter. New v. Dumitrache, — S.W.3d —, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

NOTES TO DECISIONS

1. Suing Out During Disability.

This statute extends the time for suing out the writ of error, and the writ may be sued out of any time, before the end of the extension period, whether the disability exists or has been removed. Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

2. —Procedure to Obtain Writ After Period.

The proper mode of proceedings to obtain a writ of error, after the lapse of two years from the rendition of the judgment or decree, is by petition, properly sworn to, stating the facts which take the petitioner's case out of the ordinary period of limitation. Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

3. —Contesting Facts of Petition.

The appellee may contest the material facts of the petition by plea, but those facts will be taken as true upon a motion to dismiss the writ of error. Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

4. Next Friend Suing Out Writ.

Any person who will give the bond required by law may sue out a writ of error for an infant as his next friend. Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

5. Relief Obtainable Unimportant.

Parties who bring themselves within the saving of this section are entitled, as of right, to a writ of error, without reference to the relief which they may be able to obtain by it. Caldwell v. Hodsden's Heirs, 69 Tenn. 305, 1878 Tenn. LEXIS 91 (1878); Ridgely v. Bennett, 81 Tenn. 206, 1884 Tenn. LEXIS 26 (1884).

6. Emancipated Minor.

Marriage of fully emancipated minor so that wife who sued for divorce while still a minor was not entitled to the savings clause provided by this section where petition for writ of error was not filed within two years after judgment holding her in contempt for violation of custody provision of divorce decree even though such petition was filed within two years of her reaching her majority. Talley v. Talley, 51 Tenn. App. 622, 371 S.W.2d 152, 1962 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1962).

NOTES TO DECISIONS

Decisions Under Law Prior To 1972 Amendment

1. Nature of Writ.

The office of the writ is to enable the county, circuit, chancery or special court to correct its own decree and such writ cannot be used as substitute for appeal or writ of error to take the judgment to a higher court for review. Harmon v. Bryant, 215 Tenn. 241, 385 S.W.2d 95, 1964 Tenn. LEXIS 558 (1964).

2. —Common Law Scope.

At common law, the writ of error coram nobis was exclusively confined to proceedings in law courts, and was of very limited application. Almost the only errors mentioned in the books as being subject to correction in this mode are that the defendant in the original suit, being under age, appeared by attorney; that a feme plaintiff or defendant was under the disability of coverture when the action was commenced; and that the plaintiff or defendant died before verdict or interlocutory judgment. Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

3. —New Suit.

Writ of error coram nobis is a new suit, or in the nature thereof, to reverse, revoke, and annul a former judgment, and is not commenced by the mere granting of the fiat for its issuance. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873); Rose v. Morrow, 10 Tenn. App. 698, — S.W.2d —, 1929 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1929).

A suit for writ of error coram nobis is a new action to vacate and annul a judgment rather than an action to review the judgment. Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968).

4. —Criminal Law Application.

Under § 40-3411 (now § 40-26-105), this chapter is now available to criminal defendants except insofar as that section is inconsistent with this chapter. Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471, 1966 Tenn. LEXIS 581 (1966), superseded by statute as stated in, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

5. Errors Reached by Writ.

6. —Errors of Fact.

If a judgment be erroneous in matter of fact only, and not in matter of law, it may be reversed in the same court by writ of error coram nobis, for error in fact is not the error of the judges, and reversing it is not reversing their own judgment. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856); W. D. Dunnivant & Co. v. Miller, 60 Tenn. 227, 1872 Tenn. LEXIS 479 (1873); Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873).

The error in fact, which will render a judgment erroneous and authorize the writ to correct it, must be such as would have precluded or prevented the rendition of such judgment, if the fact had judicially appeared at the former trial, as where the plaintiff or defendant was under some legal disability, at the institution of the suit, or where either party had died before the verdict or interlocutory judgment. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856); Tibbs v. Anderson, 1 Shan. 189 (1866); Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867); Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); W. D. Dunnivant & Co. v. Miller, 60 Tenn. 227, 1872 Tenn. LEXIS 479 (1873); Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873); McLemore v. Durivage, 92 Tenn. 482, 92 Tenn. 82, 22 S.W. 207, 1893 Tenn. LEXIS 4 (1893).

The writ lies for errors of fact only, which are not the errors of the judges. Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873).

7. —No Notice.

Writ of error coram nobis was proper remedy of sureties where a judgment was taken by motion against sureties without notice on a bond which was filled in after sureties had signed. Wynne v. Governor, 9 Tenn. 149, 1829 Tenn. LEXIS 30 (1829).

The writ lies for failure to notify infant of the suit. McLemore v. Durivage, 92 Tenn. 482, 92 Tenn. 82, 22 S.W. 207, 1893 Tenn. LEXIS 4 (1893).

Where service was had on petitioner he did not come within the requirements of this law since he had notice of suit even though he had no notice that complainant was going to apply for a final decree on pro confesso and therefore did not plead his discharge in bankruptcy. U. S. F. & G. Co. v. Reese, 201 Tenn. 702, 301 S.W.2d 535, 1957 Tenn. LEXIS 354 (1957).

8. —Erroneous Dismissal.

The writ lies for erroneous dismissal of suit. Crouch v. Mullinix, 48 Tenn. 478, 1870 Tenn. LEXIS 94 (1870).

9. —Facts Adjudicated.

In the proceeding under writ of error coram nobis, nothing can be assigned for error in fact which appeared and was adjudged in the former suit, or which contradicts the record of that suit. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867); Memphis German Sav. Institution v. Hargan, 56 Tenn. 496, 1872 Tenn. LEXIS 167 (1872); Carney v. McDonald, 57 Tenn. 232, 1872 Tenn. LEXIS 419 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

The writ is not available to contradict a fact previously determined in a hearing of an issue upon the merits. Davis v. Robertson, 165 Tenn. 609, 56 S.W.2d 752, 1932 Tenn. LEXIS 93 (1933).

10. —Divorce and Custody.

Writ of error coram nobis would lie for the purpose of vacating divorce decree upon allegation that defendant had good defense but was prevented from making such defense by fraud of plaintiff. Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968).

11. —Surety on Bond in Chancery.

A petition and supersedeas in chancery to be released from a judgment as surety on an injunction bond, rendered in that court, can be entertained on no other ground than as a petition for writ of error coram nobis. Hicks v. Haywood, 51 Tenn. 598, 1871 Tenn. LEXIS 209 (1871).

12. —Worker's Compensation Settlement.

Petition for writ of error coram nobis to set aside a settlement under the Worker's Compensation Law wherein it was alleged that the settlement was induced by mistake of fact as the result of statements by the employer's doctors to the effect that an arthritic condition of petitioner's back was not the result of an accident sustained in the course of employment but that subsequent to the settlement petitioner was informed that the condition of her back was in fact caused by the aforementioned accident and further that an employee of the insurance company carrying the risk represented to petitioner that the settlement only pertained to an injury to her arm and that the settlement was grossly inadequate contained sufficient allegations to permit the granting of the writ. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

13. Practice and Procedure.

14. —Parties.

The only necessary parties defendant are those who have rights or claims against petitioner and who stand to be prejudiced by vacation of the judgment. Rose v. Morrow, 10 Tenn. App. 698, — S.W.2d —, 1929 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1929).

The writ lies at instance of party in interest though not a party in name. Davis v. Robertson, 165 Tenn. 609, 56 S.W.2d 752, 1932 Tenn. LEXIS 93 (1933).

15. —Petition for Writ — Nature.

If the matter of the petition for a writ is insufficient, or, from its face, it appears the writ was granted contrary to law, advantage may be taken of the defect by motion to dismiss the petition, at any term of the court, unless there has been an express waiver of irregularities. Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873); Jackson v. Milsom, 74 Tenn. 514, 1880 Tenn. LEXIS 285 (1880).

A petition for the writ is treated as an original bill in the nature of a bill of review, and makes only an issue and is not evidence. Inman v. Fox, 1 Tenn. App. 119, — S.W. —, 1925 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1925).

16. —Dismissal of Petition.

A demurrer to the petition was properly sustained when the allegations were contradicted by facts judicially known to the court. Davis v. Robertson, 165 Tenn. 609, 56 S.W.2d 752, 1932 Tenn. LEXIS 93 (1933).

17. —Function of Writ and Notice.

The writ, or the notice of the suing out of the writ, only serves the purpose of bringing the defendant before the court. Crouch v. Mullinix, 48 Tenn. 478, 1870 Tenn. LEXIS 94 (1870).

18. —Appellate Courts — Use of Writ.

The appellate courts have no power to entertain such writs, or to review a judgment or decree except for errors apparent on face. Lamb v. Sneed, 63 Tenn. 349, 1874 Tenn. LEXIS 260 (1874).

Writ of error coram nobis could not be used to remove cause from Court of Appeals to Supreme Court. Harmon v. Bryant, 215 Tenn. 241, 385 S.W.2d 95, 1964 Tenn. LEXIS 558 (1964).

19. Judgment Pro Confesso.

Where defendant in a suit for collection under an assigned purchase contract was served with process and on the date cited to appear before the court inquired at the clerk's office, without counsel, and was advised that the case would not be heard that day, took no further action until after he was served with execution by garnishment based on a judgment pro confesso, then petitioned for a writ of coram nobis on the ground that he had not received proper notice, the court held that, under §§ 21-501 and 21-502 (since repealed and superseded by Tenn. R. Civ. P. 55), defendant had been negligent in failing to defend the action, that he had received sufficient notice, that he was not denied due process of law in the entering of the judgment pro confesso, and denied the writ. Commerce Union Bank v. Inquipco, Inc., 515 S.W.2d 651, 1973 Tenn. App. LEXIS 242 (Tenn. Ct. App. 1973), cert. denied, 419 U.S. 896, 95 S. Ct. 176, 42 L. Ed. 2d 140, 1974 U.S. LEXIS 2937 (1974).

NOTES TO DECISIONS

1. Practice and Procedure.

Criminal error coram nobis claims are not governed by the Tennessee Rules of Civil Procedure. Writs of error coram nobis filed pursuant to T.C.A. § 40-26-105 are not governed by the Tennessee Rules of Civil Procedure but rather by T.C.A. §§ 27-7-101 through 27-7-108. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

NOTES TO DECISIONS

1. Practice and Procedure.

The writ of error coram nobis contemplates relief from the results of a given judgment only in the particular court in which there was rendered that judgment. Rowan v. Inman, 207 Tenn. 144, 338 S.W.2d 578, 1960 Tenn. LEXIS 441 (1960).

2. —Requisites of Petition.

The party seeking to avail himself of the remedy of writ must show that it was owing to no fault or negligence on his part that the fact assigned as error was not made to appear at the former trial, for if, by the exercise of all reasonable care and diligence, he could have availed himself of the fact on the former trial, then this remedy should be denied. Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856); Jackson v. Milsom, 74 Tenn. 514, 1880 Tenn. LEXIS 285 (1880); Inman v. Fox, 1 Tenn. App. 119, — S.W. —, 1925 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1925).

The party seeking to avail himself of the remedy by writ of error coram nobis, upon the ground of newly discovered evidence, must show that it has come to his knowledge since the term of court closed, and must assign some reason that will enable the court to see that there was no want of diligence in discovering the same. Tibbs v. Anderson, 1 Shan. 189 (1866).

The petition for writ to be released from a judgment on an injunction bond should allege want of notice, disability, surprise, accident, or fraud, whereby the petitioner was prevented from making defense; but objection for want of such requisites must be taken to dismiss the petition or writ, or the objection will be waived. Hicks v. Haywood, 51 Tenn. 598, 1871 Tenn. LEXIS 209 (1871).

A petition for a writ of error coram nobis, which simply states, as ground for relief, that the case was taken up out of its order and the judgment rendered by accident or mistake, without stating what the accident or mistake was, is insufficient. W. D. Dunnivant & Co. v. Miller, 60 Tenn. 227, 1872 Tenn. LEXIS 479 (1873).

Whenever petitioner for writ of error coram nobis has a meritorious defense which he has for any reason failed to have an opportunity to make on the trial, he is entitled to a construction as favorable as is consistent with the statute as to allegations by which he seeks to show surprise, accident, mistake or fraud without fault. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

Where petition for writ of error coram nobis and supersedeas sought to have pro confesso decree in workers' compensation suit set aside on allegation that employee's attorney had stated that there was nothing to the suit and that it would be dismissed and that petitioners were misled thereby, chancellor properly overruled demurrer to petition since the mistake or fraud complained of was in no way induced by petitioners. White v. Adams, 204 Tenn. 620, 325 S.W.2d 236, 1959 Tenn. LEXIS 319 (1959).

Petitioner seeking review by writ of error coram nobis in criminal case in accordance with § 40-3411 (now § 40-26-105) was required to make the showing specified by this section in order to be entitled to the writ. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

Denial of defendant's motion to vacate his seven-year-old sexual battery conviction via a writ of error coram nobis was proper under T.C.A. § 27-7-102 and T.C.A. § 27-7-103, as the statute of limitations had expired and defendant did not articulate how or when the victim's recantation of her prior sexual battery and rape allegations came to light. State v. Hogue, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Feb. 28, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 477 (Tenn. May 14, 2007).

3. —Mode of Testing Sufficiency of Petition.

The sufficiency of the case stated in the petition for writ of error coram nobis may be tested by demurrer, or by acting on the application, or by motion to dismiss. Bigelow v. Mississippi C. & T. R. Co., 39 Tenn. 624, 1859 Tenn. LEXIS 292 (1859); Gallena v. Sudheimer, 56 Tenn. 189, 1872 Tenn. LEXIS 125 (1872); Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873); Jackson v. Milsom, 74 Tenn. 514, 1880 Tenn. LEXIS 285 (1880).

4. —Record Considered.

Upon motion to dismiss the petition, or upon demurrer to it, the court may look to the entire record to see whether the error in fact complained of appeared, and was adjudged in such suit, or to see whether the petition contradicts the record of that suit. Hicks v. Haywood, 51 Tenn. 598, 1871 Tenn. LEXIS 209 (1871); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

5. —Facts Which Would Have Changed Judgment.

A petition for a writ which shows that the appellant from a justice of the peace (now general sessions judge) did not have the case docketed, and did not prosecute his appeal diligently, but relied on the statement of the clerk that it would not be tried at that term does not show any such error of fact as would have prevented the rendition of the judgment had it appeared on the trial. Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); Jackson v. Milsom, 74 Tenn. 514, 1880 Tenn. LEXIS 285 (1880); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881).

The purpose of the writ of error coram nobis is to bring to the attention of the court some fact unknown to the court which if known would have resulted in a different judgment. State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 1966 Tenn. LEXIS 625 (1966).

6. —Appeal.

An appeal from the decree dismissing the petition for a writ of error coram nobis does not operate as an appeal from the decree or judgment so sought to be corrected or annulled by such writ; and upon such appeal nothing can be examined but the matter arising on the petition. Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867).

From the judgment dismissing the petition or writ, the petitioner may appeal in error, and, at the same time, he may, by writ of error, take up the original cause, if the time for doing so has not expired, and have the questions involved in both aspects passed upon together in the appellate court. Gallena v. Sudheimer, 56 Tenn. 189, 1872 Tenn. LEXIS 125 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872).

7. —Allowing Petition for Writ as Supersedeas.

Where the judgment is void and unjust, and the writ is refused, and the prayer therefor withdrawn, the petition for the writ may be allowed as for a supersedeas, which was prayed for in the petition, and the execution quashed. Coltart v. Hamm, 2 Cooper's Tenn. Ch. 356 (1875).

8. Errors Reached by Writ.

An error of law cannot be reached through a writ of error coram nobis. Nailling v. State, 208 Tenn. 372, 346 S.W.2d 247, 1961 Tenn. LEXIS 295 (1961); Moore v. Moore, 224 Tenn. 611, 460 S.W.2d 844, 1970 Tenn. LEXIS 363 (1970).

Writ of error coram nobis can in no instance be available to those who are at fault within the limitations of the case in which the writ is sought. Nailling v. State, 208 Tenn. 372, 346 S.W.2d 247, 1961 Tenn. LEXIS 295 (1961).

Writ of error coram nobis will not lie to correct error of law made by litigant's attorney. Nailling v. State, 208 Tenn. 372, 346 S.W.2d 247, 1961 Tenn. LEXIS 295 (1961).

9. —Generally.

A party to a litigation in the circuit court may, by petition for a writ of error coram nobis, averring a meritorious claim or defense and by proper allegations of fact of surprise, mistake or accident, have a judgment by default set aside. Hyde v. Dunlap, 8 Tenn. App. 260, — S.W.2d —, 1928 Tenn. App. LEXIS 136 (Tenn. Ct. App. 1928).

10. —Judgment by Motion Without Notice on Paper Not Executed by Defendant.

In cases where judgments are authorized by law to be rendered on bonds without notice, the writ is the proper remedy to annul or reverse such a judgment so rendered, where error of fact shown is sufficient to justify it, as where the bond was not executed by the petitioner against whom the judgment was rendered, but his name was signed thereto by some one without authority, for, while the rule is that bonds as records cannot be averred against, this rule is not applicable where the records are made through mistake, or bonds of record are forged. Wynne v. Governor, 9 Tenn. 149, 1829 Tenn. LEXIS 30 (1829); Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

Where a judgment has been rendered against a surety, and he takes judgment by motion, without notice, over against the supposed principals on the note, only one of whom was in fact the principal, and the others never executed or authorized any one to execute the note for them, such others are entitled to relief by writ of error coram nobis, as well as by bill in chancery. Douglass v. Joyner, 60 Tenn. 32, 1872 Tenn. LEXIS 471 (1872).

11. —Fraud.

Reliance on the promise of one's codefendants to make his defense for him, and their failure to do so, is not a fraud in the sense of the statute, which has reference to fraud practiced by the opposing party or for his benefit. Memphis German Sav. Institution v. Hargan, 56 Tenn. 496, 1872 Tenn. LEXIS 167 (1872).

Where a plea of a good defense, sustained by a deposition agreed to be filed, and the declaration, the plea, and the deposition were all intrusted to the plaintiff's attorney to be filed, which he withheld or suppressed, and without the knowledge of the defendant or his attorney, and without negligence on their part, the plaintiff's attorney took judgment by default and judgment final, which could not have been done had the plea and deposition been filed, it was fraud in the plaintiff's attorney to take such judgment, either by default or final, and the defendant was held to be entitled to relief by writ of error coram nobis. Tucker v. James, 59 Tenn. 333, 1873 Tenn. LEXIS 70 (1873).

12. —Negligence or Mistake of Clerk.

The writ does not lie to correct an alleged mistake by the clerk, in making up the record. State v. Disney, 37 Tenn. 598, 1858 Tenn. LEXIS 71 (1858).

The clerk's misinformation given to the attorney about when a case would be tried is not a sufficient ground for the writ. Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881).

Where a garnishee appeared before the clerk and answered in a subscribed and sworn writing, denying the indebtedness, after which a judgment nisi was taken and a scire facias issued, to which a like answer was made, and judgment final was rendered against the garnishee, without his answers being marked filed or brought before or to the attention of the court, in either case, the garnishee is entitled to relief by writ of error coram nobis. Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873).

13. —Absence of Counsel.

Where the record shows that the cause was tried in the presence of the attorneys of the parties, it cannot be contradicted in petition for a writ. Carney v. McDonald, 57 Tenn. 232, 1872 Tenn. LEXIS 419 (1872); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

No valid assignment of errors can be made upon a petition for the writ of error coram nobis, based alone upon the allegation that the cause was tried and judgment rendered, in the absence of petitioner's counsel. Carney v. McDonald, 57 Tenn. 232, 1872 Tenn. LEXIS 419 (1872); Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); Thruston v. Belotte, 59 Tenn. 249, 1873 Tenn. LEXIS 51 (1873); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881).

14. —Action Taken in Litigated Case After Continuance as Ground.

Where an order was made continuing all litigated civil cases, any step taken in such a litigated case, at that term, and in the absence of a party, would be irregular and erroneous, and ground for writ of error coram nobis. Whether the case was a litigated one is a question of fact, and brings the case within the class of errors in fact. If the case had been continued by name, it would be error apparent on the record, and could only be reached by writ of error to the Supreme Court. Crouch v. Mullinix, 48 Tenn. 478, 1870 Tenn. LEXIS 94 (1870); Thruston v. Belotte, 59 Tenn. 249, 1873 Tenn. LEXIS 51 (1873).

A petition for a writ is insufficient, where it alleged that the petitioner and his counsel understood, and that it was declared in court, that no litigated cases would be tried at the term at which the decree complained of was rendered, without showing by whom the declaration in court was made, and showing that the understanding was between the petitioner and his counsel. Thruston v. Belotte, 59 Tenn. 249, 1873 Tenn. LEXIS 51 (1873); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881).

15. —Errors of Law or of Fact Apparent on Record.

Where the error in fact relied upon to reverse or amend the judgment appeared and was judicially considered in the trial of the former suit, and caused the wrong judgment to be rendered, the remedy is not by writ of error coram nobis, but by appeal or writ of error to the appellate court to reverse the judgment for error in matter of law. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867).

The relief obtainable by writ of error coram nobis in a criminal case is confined to errors outside the record and matters which were not and could not have been litigated on trial of the case, or on a motion for a new trial, or appeal in the nature of a writ of error, or a writ of error or a habeas corpus proceeding. Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471, 1966 Tenn. LEXIS 581 (1966), superseded by statute as stated in, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

16. —Abandonment of Defense Without Dismissal of Suit.

Where publication is necessary to give the court jurisdiction, and the record does not show that publication was made, it was an error of law and not of fact, arising upon the record, which cannot be corrected by the writ of error coram nobis, but by writ of error or appeal. Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867).

Where the defendant abandoned his defense, upon the ground that no declaration was filed, and the papers could not be found, he will not be entitled to the writ to annul the final judgment afterwards taken against him by default, upon a declaration subsequently filed. He should have taken judgment by default against the plaintiff, and had his suit dismissed, because no declaration was filed. Brandon v. Diggs, 48 Tenn. 472, 1870 Tenn. LEXIS 93 (1870); Mahalovitch v. Vaughn, 60 Tenn. 325, 1872 Tenn. LEXIS 501 (1873); Thruston v. Belotte, 59 Tenn. 249, 1873 Tenn. LEXIS 51 (1873).

The writ does not lie to annul or reverse a judgment, rendered by motion and without notice, upon a replevy bond, upon the error assigned that the judgment was not authorized by law, for the reason that the bond constitutes a part of the record, and if there be any error, it is one of law clearly arising upon the record then before the court. Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881).

17. —Mistake.

Where the defendant was under the full impression that he had retained, as counsel to defend the suit, an attorney who was in fact the counsel of the plaintiff, there not appearing to be any negligence or fault on the part of either client or attorney, and judgment by default and judgment final were rendered against the defendant, before he discovered his mistake, he was entitled to relief by the writ where he had a good defense. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Anderson & Co. v. Hagge, 3 Shan. 672 (1875).

18. —Defense of Limitations.

The writ is the proper remedy to have the benefit of the defense of the statute of limitations, where a judgment by motion has been taken but without the required notice, and without appearance or defense. Merritt v. Parks, 25 Tenn. 332, 1845 Tenn. LEXIS 99 (1845); Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856).

19. —Ejectment Against Tenant — Judgment by Default.

Where an action of ejectment was brought against the tenant and actual occupant of the land, who failed to notify his landlord and suffered judgment by default against himself, and was ousted by writ of possession, the landlord is not entitled to the writ, though he shows a good defense on the merits. Hillman v. Chester, 59 Tenn. 34, 1873 Tenn. LEXIS 21 (1873).

20. —Notice.

A judgment rendered on a note given to the clerk or commissioner for the purchase of property sold by order of the court, upon motion, without notice to the maker, and without allowing credits for payments made, will be vacated and annulled by the writ of error coram nobis. Sharp v. Harrison, 57 Tenn. 573, 1873 Tenn. LEXIS 265 (1873).

A writ lies to reverse a decree depriving an infant of lands to which he has a perfect title, where, by accident or mistake in the service of process, the infant and his guardian failed to receive, without fault or negligence on their part, such notice of the pendency of the suit as would have enabled them to make defense. McLemore v. Durivage, 92 Tenn. 482, 92 Tenn. 82, 22 S.W. 207, 1893 Tenn. LEXIS 4 (1893).

21. —Lack of Service.

Where petitioner was sued along with many others for liability on bank stock and was advised that such others would make a test case, and no copy of the pleading was served on petitioner, and she did not know that she had been sued, grant of writ justified. Rose v. Morrow, 10 Tenn. App. 698, — S.W.2d —, 1929 Tenn. App. LEXIS 68 (Tenn. Ct. App. 1929).

22. —Forgetting Term of Court.

Failure to remember the terms fixed by law for the holding of the court is not sufficient. Inman v. Fox, 1 Tenn. App. 119, — S.W. —, 1925 Tenn. App. LEXIS 18 (Tenn. Ct. App. 1925).

23. —Attorney's Failure to Present Witnesses.

Petition for writ based on alleged ground that in main trial petitioner's attorney had failed, in petitioner's absence and without petitioner's knowledge, to present essential witnesses for petitioner, was demurrable. Loving v. Dugan, 4 Tenn. Civ. App. (4 Higgins) 272 (1913).

24. —Errors of Fact.

The writ of error coram nobis lies for errors of fact only which are not the errors of the judges. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

25. —Divorce and Custody.

Writ of error coram nobis would lie for the purpose of vacating divorce decree upon allegation that defendant had good defense but was prevented from making such defense by fraud of plaintiff. Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968).

Question of whether alleged advice given by attorney to defendant in divorce proceeding to effect that under local rule of court answer could not be filed on the day before trial was a question of law and not an error of fact and could not be reached by writ of error coram nobis. Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968).

26. —Nonresident Sued as Absconding Debtor.

Where an attachment was sued out against the property of a person as an absconding debtor, and final decree or judgment was taken, he is not entitled to relief by the writ upon the ground that he was not an absconding debtor, but a nonresident, at the time the attachment was sued out. The defendant's remedy is by suit on the attachment bond. Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867).

27. —False Return.

Where the original process was not served, but upon a false return, judgment was rendered against the defendant, the writ is not his proper remedy, because the falsity of the officer's return cannot be reached by such writ. Baxter v. Erwin, 1 Shan. 113 (1858); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

28. —Trial of Several Cases Together.

The fact that two other cases were consolidated and heard before the same jury, at the same time, with the one under consideration will not warrant the writ. Tibbs v. Anderson, 1 Shan. 189 (1866).

29. —Plaintiff's Receipt of Compensation from Dismissed Defendants.

The discovery after the trial that the plaintiff had before the trial received from some of the defendants compensation in lieu and in satisfaction of his damages, and which was not known to the other defendants in time to plead accord and satisfaction, is not such error of fact as will authorize the writ of error coram nobis. Tibbs v. Anderson, 1 Shan. 189 (1866).

30. —Surprise — What Constitutes.

Where, in an action for trespass on the case for false imprisonment against several defendants, a nolle prosequi was entered as to one of the defendants, after the cause was called for trial, and the jury selected, such action by the plaintiff cannot operate as such surprise as is contemplated by this section, nor can it warrant the writ. Tibbs v. Anderson, 1 Shan. 189 (1866).

31. Judgment Pro Confesso.

Where defendant in a suit for collection under an assigned purchase contract was served with process and on the date cited to appear before the court inquired at the clerk's office, without counsel, and was told that the case would not be heard that day, took no further action until after he was served with execution by garnishment based on a judgment pro confesso, and then petitioned for a writ of coram nobis on the ground that he had not received proper notice, the court held that, under §§ 21-501 and 21-502 (since repealed and superseded by Tenn. R. Civ. P. 55), defendant had been negligent in failing to defend the action, that he had received sufficient notice, that he was not denied due process of law in the entering of the judgment pro confesso, and denied the writ. Commerce Union Bank v. Inquipco, Inc., 515 S.W.2d 651, 1973 Tenn. App. LEXIS 242 (Tenn. Ct. App. 1973), cert. denied, 419 U.S. 896, 95 S. Ct. 176, 42 L. Ed. 2d 140, 1974 U.S. LEXIS 2937 (1974).

NOTES TO DECISIONS

1. Purpose of Section.

The intent of this section was evidently to limit the right to proceed thereunder to one year from the time when the matters complained of in the petition for review had been considered and adjudicated, having in mind that such proceedings should be brought before such a lapse of time as would make it unlikely that witnesses could be reproduced and the facts correctly reviewed. Cates v. McKenzie, 176 Tenn. 313, 141 S.W.2d 471, 1940 Tenn. LEXIS 76 (1940).

2. Judgment Attacked.

3. —Time of Rendition.

The time of “rendition” is the time of announcement, “in a conclusive manner and with decisive effect,” of a judgment, as distinguished from entry thereof, which may be at a later date. Cates v. McKenzie, 176 Tenn. 313, 141 S.W.2d 471, 1940 Tenn. LEXIS 76 (1940) (Decided before 1967 amendment).

Where a decree of tax liability was entered, a lien fixed upon the property as of that date and a sale ordered, such decree was the “rendition of judgment” within the meaning of this section rather than a subsequent decree confirming the sale under such decree. Cates v. McKenzie, 176 Tenn. 313, 141 S.W.2d 471, 1940 Tenn. LEXIS 76 (1940) (Decided before 1967 amendment).

4. —Decree upon Order Pro Confesso.

A decree settling the rights of the parties, founded upon the bill and an order pro confesso, after personal service upon a party sui juris, is a final decree, and cannot be set aside at a subsequent term, except upon proper proceedings instituted for that purpose, such as a writ of error coram nobis, within one year as provided by this section. Johnson v. Tomlinson, 81 Tenn. 604, 1884 Tenn. LEXIS 77 (1884).

5. Proceedings for Error Coram Nobis.

Trial court did not err in finding that a petition for writ of error coram nobis was time-barred, because based on the record it was clear that the petition was filed several years after the statute of limitations had expired, and it was also clear that the state had raised the untimeliness of the petition in its motion in opposition to the petition. State v. Mann, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 6, 2007), cert. denied, Mann v. Tennessee, 171 L. Ed. 2d 773, 128 S. Ct. 2480, 553 U.S. 1057, 2008 U.S. LEXIS 4163 (U.S. 2008).

Regardless of the untimeliness of the petition, petitioner failed to present newly discovered evidence that might have resulted in a different judgment had it been presented at trial, because his claim that his co-counsel operated under a conflict of interest during his trial was not cognizable in a petition for writ of error coram nobis; petitioner's allegation, if proved, would have constituted ineffective assistance of counsel which the writ of error coram nobis was not designed to remedy, and furthermore petitioner's claim, if proved, did not exonerate him of guilt in the first degree murder case. State v. Mann, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 6, 2007), cert. denied, Mann v. Tennessee, 171 L. Ed. 2d 773, 128 S. Ct. 2480, 553 U.S. 1057, 2008 U.S. LEXIS 4163 (U.S. 2008).

In a murder case, the denial of defendant's request for writ of error coram nobis was remanded for a hearing to determine whether the statute of limitations should be tolled, because if what a witness stated was true, the timeline presented by the state at trial would be called into question; according to the state's timeline at trial, defendant would have been helping the witness with her car trouble at the same time he would have been transporting the victim's body, but the witness stated that she saw inside both defendant's trunk and car and did not see a body, which was information that was both favorable and material. Harris v. State, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Dec. 3, 2007), rev'd, 301 S.W.3d 141, 2010 Tenn. LEXIS 8 (Tenn. Jan. 14, 2010).

Defendant's petition for writ of error coram nobis was barred by the statute of limitations because the time within which petitioner filed his petition for coram nobis relief exceeded the reasonable opportunity afforded by due process. The delay of nearly five years was unreasonable. Thomas v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 23, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 773 (Tenn. Aug. 25, 2011), cert. denied, Thomas v. Tennessee, 565 U.S. 1245, 132 S. Ct. 1713, 182 L. Ed. 2d 252, 2012 U.S. LEXIS 1846 (U.S. 2012).

Defendant's petition for a writ of error coram nobis was properly dismissed because it was filed well outside the applicable one-year statute of limitations where defendant offered no real reason for not discovering a potential witness sooner, even had the witness been known and produced at trial, the witness testified that he was not coherent at the time, and the record did not support a finding that the witness's testimony would have actually contradicted any of the overwhelming evidence presented at the trial. Haneline v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 225 (Tenn. Crim. App. Mar. 31, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 535 (Tenn. June 15, 2015).

Petitioner's application for a writ of error coram nobis was properly dismissed because it was filed beyond the statute of limitations; the statute of limitations defense was not waived because petitioner was aware of the statute of limitations issue, and he made allegations in a presumptive attempt to rebut it as a defense. Jefferson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 657 (Tenn. Aug. 14, 2015).

Due process did not require tolling the statute of limitations because petitioner offered no explanation for the delay in filing his petition. Jefferson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 657 (Tenn. Aug. 14, 2015).

Judgment was entered on July 24, 2002, and the statute of limitations would have begun to run 30 days later on August 23, 2002, such that the one-year statute of limitations expired on August 23, 2003. King v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 869 (Tenn. Crim. App. Oct. 23, 2015).

Coram nobis court applied the proper standard under T.C.A. § 27-7-103 in denying the petition; although the coram nobis court used the “would have” standard, this did not necessarily signify the application of an incorrect legal standard, and at the conclusion of the hearing, the coram nobis court applied the “may have” standard. Miller v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 631 (Tenn. Sept. 21, 2017).

6. —Commencement of Suit.

The writ of error coram nobis is a new suit to reverse or amend a former judgment, and is not commenced by the mere granting of the fiat for its issuance, for the petition must be filed with the clerk of the court and the terms of the fiat complied with by the execution of the bond required by law or the fiat of the judge, in order to commence such suit all within the time. Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873).

7. —Amendment of Petition.

The petition for a writ of error coram nobis and supersedeas may be amended on good cause shown, although leave to amend should be very guardedly awarded. Baxter v. Grandstaff, 3 Cooper's Tenn. Ch. 244 (1876).

The petition for the writ and supersedeas to annul a judgment taken upon motion and without notice against a sheriff and his sureties, for the nonreturn of an execution, may be amended on good cause shown, but where the judgment was in favor of the clerk, as an officer of the court, and for the benefit of suitors, the amended petition, if based upon information and belief should, as a matter of precaution, be sustained by the affidavits of persons having actual knowledge of the facts. Baxter v. Grandstaff, 3 Cooper's Tenn. Ch. 244 (1876).

8. —Affidavit to Petition.

The petition for the writ of error coram nobis must be sworn to; and if the affidavit is made by one styling himself agent for the petitioner, it must appear in the affidavit or petition that the facts relied on are peculiarly within the knowledge of such agent, or good cause must be shown for the employment of an agent. Reid v. Hoffman, 53 Tenn. 440, 1871 Tenn. LEXIS 378 (1871).

9. —Presumed Issuance of Writ.

The writ never in fact issues, but is presumed to issue in accordance with the fiat, on filing the petition with the clerk of the court, and giving bond as required by law. Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

10. —Order of Judge Requisite.

This section contemplates an order of the judge of the court for the writ of error coram nobis, which would be an adjudication of the applicant's right to it, without which, the assignment of errors, and the proceedings thereon, are without authority, although no writ ever in fact issues. Coltart v. Ham, 2 Cooper's Tenn. Ch. 356 (1875).

11. —Time-barred.

Prisoner's petition for coram nobis relief was barred by a one-year statute of limitations because the prisoner's claim that the prisoner was ineligible for the death penalty, as the prisoner was intellectually disabled, could have been litigated at trial or during post-conviction proceedings. Therefore, the grounds were not later-arising, justifying the tolling of the statute of limitations. Chalmers v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. June 30, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 956 (Tenn. Nov. 19, 2014), cert. denied, Chalmers v. Tennessee, 193 L. Ed. 2d 50, 136 S. Ct. 39, — U.S. —, 2015 U.S. LEXIS 5599 (U.S. 2015).

In petitioner's death penalty case, the petition for writ of error coram nobis was barred by the one-year statute of limitations because, when petitioner filed his motion to reopen in April 2012, he chose not to file a petition for writ of error coram nobis alleging that he was intellectually disabled; additionally, an expert's affidavit claimed no new test results nor information that could not have been known or discovered in 1987. Payne v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1005 (Tenn. Crim. App. Oct. 30, 2014), aff'd, 493 S.W.3d 478, 2016 Tenn. LEXIS 265 (Tenn. Apr. 7, 2016).

Coram nobis court properly granted defense counsel's motion to withdraw and the State's motion to dismiss defendant's petition for writ of error coram nobis as untimely because defendant had an opportunity to present his claims in a meaningful time and a meaningful manner, there was no showing that the claimed grounds for relief arose after the statute of limitations began to run, defendant did not allege grounds that, if true, would entitle him to coram nobis relief, and the coram nobis court was not required to appoint a successor counsel to respond to the State's motion or to conduct a hearing to determine whether due process should toll the statute of limitations. Taylor v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 16, 2015).

Defendant was not entitled to coram nobis relief because defendant's claim regarding new Tennessee Department of Human Services and police records pertaining to inconsistent accounts by the child molestation victim was time-barred in that defendant waited an unreasonable amount of time after receipt of the records to file the petition. Regardless, there was no reasonable basis for concluding that the results might have been different had the newly discovered records been presented at defendant's trial. Duke v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 925 (Tenn. Ct. App. Nov. 23, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 292 (Tenn. Apr. 6, 2016), cert. denied, Duke v. Tennessee, 196 L. Ed. 2d 305, 137 S. Ct. 387, 2016 U.S. LEXIS 6692.

Even if the allegedly new medical expert evidence of a doctor's opinion was later-arising, it was barred by the statute of limitations because, assuming, arguendo, that defendant could not have discovered with due diligence the new medical expert opinion evidence earlier, defendant could at least have raised it when defendant first received the doctor's opinion. Duke v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 925 (Tenn. Ct. App. Nov. 23, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 292 (Tenn. Apr. 6, 2016), cert. denied, Duke v. Tennessee, 196 L. Ed. 2d 305, 137 S. Ct. 387, 2016 U.S. LEXIS 6692.

Waiting over 10 years to obtain an affidavit from an allegedly recanting witness, after having been granted a full hearing on a previous petition asserting the same ground for relief, exceeded the reasonable opportunity to present a claim; petitioner was not entitled to an additional evidentiary hearing, and the fact that she unsuccessfully attempted to obtain relief through post-conviction proceedings did not further toll the statute of limitations, and the denial of her second petition for coram nobis was affirmed. Barnett v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. Sept. 23, 2015), review denied, — S.W.3d —, 2016 Tenn. LEXIS 67 (Tenn. Jan. 21, 2016).

Waiting over 10 years to obtain an affidavit from an allegedly recanting witness, after having been granted a full hearing on a previous petition asserting the same ground for relief, exceeded the reasonable opportunity to present a claim; petitioner was not entitled to an additional evidentiary hearing, and the fact that she unsuccessfully attempted to obtain relief through post-conviction proceedings did not further toll the statute of limitations, and the denial of her second petition for coram nobis was affirmed. Barnett v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. Sept. 23, 2015), review denied, — S.W.3d —, 2016 Tenn. LEXIS 67 (Tenn. Jan. 21, 2016).

Defendant's petition for writ of error coram nobis, seeking a new trial based on the fact that the forensic medical examiner (ME) who testified at his trial had his medical license revoked in 2005 due to intentional misdeeds, was properly dismissed because defendant did not allege any specific findings of incorrect, incompetent, or intentionally deceitful testimony by the ME during his trial; defendant's petition was not filed until December 2013, almost 23 years after the statute of limitations had expired; and defendant waited more than two years after he learned of the ME's conduct before filing the petition. Woods v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. Oct. 15, 2015).

Given the state of the record, which did not include certain appendices, the court was unable to examine the alleged newly discovered evidence in order to determine whether petitioner's grounds for relief actually arose after the expiration of the statute of limitations, and thus it had to be presumed that the decision of the trial court finding that the evidence was not later-arising was correct; because the petition was filed well beyond the statute of limitations period and no due process concerns precluded application of the limitations period, petitioner was not entitled to relief. King v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 869 (Tenn. Crim. App. Oct. 23, 2015).

Inmate's petition for writ of error coram nobis was time-barred because (1) the petition was not filed within one year of the trial court's final judgment, and (2) due process did not require tolling, as an expert could testify before the limitations period expired, and a failure to call the expert at trial was not explained, so the evidence the petition was based on did not arise after the limitations period began. Moore v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Nov. 6, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 369 (Tenn. May 9, 2016).

Defendant's pro se petition for writ of habeas corpus, if treated as a petition for a writ of error coram nobis, was filed after the one-year statutory limitations had expired, and defendant did not allege anything that would have tolled the limitations period. Howard v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 968 (Tenn. Crim. App. Dec. 4, 2015), review or rehearing denied, — S.W.3d —, 2016 Tenn. LEXIS 217 (Tenn. Mar. 23, 2016).

Summary dismissal of defendant's petition for a writ of error coram nobis was appropriate because the petition was time barred, as it was filed well beyond the one-year statute of limitations, and due process considerations did not require a tolling of the statute of limitations, as the evidence against defendant was overwhelming. Barnes v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 10, 2016).

Statute of limitations expired more than a year and a half before defendant filed a pro se petition for writ of error coram nobis. Furthermore, because defendant raised the issue of the statute of limitations in the petition and in appellate briefs, defendant could not argue that defendant was prejudiced by failing to receive fair notice of this defense or by not having an opportunity to rebut this defense when the coram nobis court summarily dismissed the petition. Willis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. July 7, 2016).

Petitioner's coram nobis claim regarding the discovery of an unedited videotape was time-barred because the petitioner's conviction became final upon the judgment of conviction in the trial court. However, reversal of the judgment as to a claim regarding lab bench notes and remand for a hearing on whether due process required tolling the statute of limitations on the claim was appropriate as the appellate court was unable to determine whether the ground for relief actually arose after the limitations period commenced. Cauthern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. Mar. 24, 2017).

Defendant's claims regarding the victim's having lied at trial and having been threatened regarding the victim's trial testimony were barred by the statute of limitations because those issues were raised at defendant's trial and motion for new trial, and the victim was cross-examined at trial about having recanted the victim's allegations against defendant. Defendant's claim of witnessing another person rape the victim was also time-barred because the victim testified at trial that the other person had also touched the victim. Cradic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. May 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 691 (Tenn. Oct. 4, 2017).

State of Tennessee's statute of limitations argument was without merit under the law of the case doctrine because the State did not file a petition to rehear in the first appeal concerning the intermediate appellate court's determination that the statute of limitations issue could not be considered, nor did the State seek review by the Supreme Court of Tennessee. State v. Lowery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 798 (Tenn. Nov. 16, 2017).

Coram nobis petition was untimely, having been filed nearly two decades after the one-year limitations period. Keen v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 710 (Tenn. Crim. App. Aug. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 896 (Tenn. Dec. 11, 2017).

Judgments became final on April 12, 2012 and thus petitioner had until April 12, 2013 to file a petition for writ of error coram nobis; however, petitioner did not file until 2017, well outside the one-year statute of limitations, and as petitioner's grounds for relief were not later-arising and he conceded that he was aware that the jury had viewed the forensic interviews in question during its deliberations as early as 2011, due process does not require tolling of the statute of limitations. Guilfoy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 531 (Tenn. Crim. App. July 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 725 (Tenn. Nov. 14, 2018).

Petition for writ of error coram nobis was untimely because it was not filed until three years after the judgment became final. Mosley v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 924 (Tenn. Crim. App. Dec. 28, 2018).

Because the petition for writ of error coram nobis was untimely filed and because tolling of the statute of limitations was not required given the inmate's failure to sufficiency explain why he was entitled to equitable tolling, the coram nobis court did not err in denying the petition. Arnold v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 72 (Tenn. Crim. App. Feb. 5, 2020).

12. Effect of Filing Late.

Petition challenging validity of criminal conviction which was not filed within one year of rendition of judgment was properly treated as a petition for habeas corpus rather than for writ of error coram nobis. Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471, 1966 Tenn. LEXIS 581 (1966), superseded by statute as stated in, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999) (Decided before 1967 amendment).

A coram nobis petition was time barred where, even though the state did not specifically cite this section in its motion to dismiss, the fact that it did cite § 40-30-102 — the statute of limitations applicable to post-conviction claims — was sufficient to give notice that it intended to rely on a statute of limitations. Sands v. State, 903 S.W.2d 297, 1995 Tenn. LEXIS 331 (Tenn. 1995), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Due process precluded summary dismissal of a writ of coram nobis petition that was filed 14 days after the statute of limitations expired since a full evaluation of defendant's claim of recanted evidence outweighed the governmental interest in the statute of limitations. State v. Ratliff, 71 S.W.3d 291, 2001 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2002 Tenn. LEXIS 70 (Tenn. Feb. 11, 2002).

Inmate's allegations of newly discovered exculpatory evidence that was suppressed by the state, that the accomplice told another person that he was the sole shooter, could not have been litigated previously and raised serious questions regarding whether the inmate, in fact, murdered the victim. Thus, due process precluded summary dismissal of her claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence; at the hearing, the inmate would have the opportunity to establish that there was a “reasonable probability” that the newly discovered evidence might have resulted in a different judgment if the evidence had been admitted at the previous trial and, if she made that showing and she established that she “was without fault” in failing to present the newly discovered evidence at the appropriate time, she would be entitled to a new trial. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Fact that the inmate escaped from jail and remained a fugitive for many years did not change the fact that the exculpatory evidence was withheld by the state and, even if the inmate had not escaped, there was no reason to believe the exculpatory evidence would have been disclosed voluntarily. Thus, due process precluded the summary dismissal of the inmate's claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Defendant's petition for writ of error coram nobis was filed well outside the one-year statute of limitations, as it was filed over four years after the appellate court affirmed defendant's convictions on direct appeal; defendant failed to advance any ground for which the statute of limitations should be tolled, such that the trial court properly dismissed the petition as time-barred. Thomas v. State, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Oct. 8, 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 283 (Tenn. Mar. 21, 2005), cert. denied, Thomas v. Tennessee, 546 U.S. 857, 126 S. Ct. 129, 163 L. Ed. 2d 134, 2005 U.S. LEXIS 6977 (2005).

Tennessee's one-year statute of limitations that governed the filing of coram nobis petitions was a procedural bar that constituted an adequate and independent state ground that was sufficient to preclude habeas review. Harbison v. Bell, — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 4152 (E.D. Tenn. Jan. 16, 2007), aff'd, 503 F.3d 566, 2007 FED App. 393P (6th Cir.), 2007 U.S. App. LEXIS 22802 (6th Cir. Tenn. 2007).

13. Petition Denied.

Trial court did not abuse discretion in finding that inmate was afforded reasonable opportunity to present the claim before the one-year limitations period ran because the record did not establish when petitioner received the department of correction report which was the basis of his coram nobis claim, and therefore meaningful assessment of whether inmate had reasonable opportunity to present the claim was impossible. State v. McGowan, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 5, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 820 (Tenn. Oct. 27, 2008), cert. dismissed, McGowan v. Tennessee, 173 L. Ed. 2d 577, 129 S. Ct. 1334, 555 U.S. 1164, 2009 U.S. LEXIS 1105 (U.S. 2009).

14. Tolling of Statute of Limitations.

As defendant filed a petition for coram nobis relief within three months of the arrest for possession of marijuana of a forensic pathologist who performed a victim's autopsy, this delay was not unreasonable and defendant was entitled to due process tolling. State v. Mathis, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 26, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 211 (Tenn. Feb. 25, 2013), cert. denied, Mathis v. Tennessee, 187 L. Ed. 2d 51, 134 S. Ct. 60, — U.S. —, 2013 U.S. LEXIS 5552 (U.S. 2013).

Petitioner was not entitled to coram nobis relief because the petition was untimely, petitioner did not show that the statute of limitations should be tolled, petitioner did not show that he was not at fault in not previously presenting statements from a codefendant and other witnesses, petitioner did not show how police reports of other robberies would have been relevant at his own trial, and petitioner did not demonstrate that any newly-discovered evidence might have resulted in a different judgment. Campbell v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. June 25, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 941 (Tenn. Nov. 13, 2013), cert. denied, Campbell v. Tennessee, 189 L. Ed. 2d 188, 134 S. Ct. 2307, — U.S. —, 2014 U.S. LEXIS 3415 (U.S. 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 583 (Tenn. July 14, 2014).

In a first degree premeditated murder case, a petition for a writ of error coram nobis was properly dismissed as untimely; the one-year statute of limitations for such proceedings was not tolled based on newly discovered evidence because petitioner knew at the time of trial about statements he made to police. At a hearing, trial counsel testified that he knew of the statement that petitioner made on the night of his arrest and possessed a copy of that statement; moreover, trial counsel stated that both petitioner and his wife testified at trial about the victim's assault on petitioner. Meeks v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 115 (Tenn. Crim. App. Feb. 20, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 496 (Tenn. June 11, 2015).

In a case in which an inmate claimed that he was ineligible for the death penalty because he was intellectually disabled and that his murder conviction violated principles of double jeopardy, the court of criminal appeals concluded that the inmate's petition for a writ of error coram nobis was barred by the one-year statute of limitations provided in T.C.A. § 27-7-103, and that due process did not require tolling of the statute of limitations. Dellinger v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Aug. 18, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 334 (Tenn. May 6, 2016).

Petitioner, who appealed the dismissal of his petition for a writ of error coram nobis which alleged newly discovered evidence, failed to meet his burden of proving that due process required tolling of the one-year statute of limitations. Petitioner's claim of newly discovered evidence did not constitute a “later-arising” claim because the evidence at issue existed long before petitioner's trial, and there was no evidence presented that the exercise of reasonable diligence would not have led to a timely discovery of the new information. Rome v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 607 (Tenn. Aug. 19, 2016).

Because the convictions that mandated defendant's compliance with the sexual offender registry were not evidence of actual innocence that would have changed the course of trial, the trial court found that the statute of limitation for the writ of error coram nobis should not be tolled. Dalton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2016).

Because the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act included defendant's convictions for aggravated kidnapping and especially aggravated kidnapping as sexual offenses since 2006, the issue regarding the requirement that defendant register as a sex offender did not arise after the limitations period, and the exercise of reasonable diligence would have led to a timely discovery of the requirement that he had to register as a sex offender, the statute of limitations for the writ of error coram nobis was not be tolled. Dalton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 5, 2016).

Due process considerations did not toll the statute of limitations for either of the grounds raised by defendant in a pro se petition for coram nobis relief because the grounds for relief did not arise after the commencement of the limitations period as the State of Tennessee provided the purportedly, newly discovered notes in investigative files to defendant prior to the trial and defendant had tried to use the purportedly, newly discovered telephone recordings in an earlier motion to suppress. Willis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. July 7, 2016).

Petitioner's judgment was entered on August 28, 1997, which became final 30 days later, yet his petition for writ of error coram nobis was not filed until outside the statute of limitations under T.C.A. § 27-7-103, which was not tolled by due process; despite petitioner's testimony that he was unaware of certain evidence until 2014, his grounds did not arise after the statute of limitations commenced, there was no explanation as to why he waited nearly 17 years to request his file, and there was accredited testimony that trial counsel was given a copy of the file before the first trial. Miller v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 631 (Tenn. Sept. 21, 2017).

Writ was filed approximately 10 years after the limitations period had run, and due process did not require tolling because the linguistics expert's findings did not tend to show that a different verdict might have resulted if petitioner had testified with the assistance of an interpreter; petitioner's ability to speak English had been previously litigated and each time it was held that his English skills were sufficient not to require an interpreter. Young Bok Song v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 505 (Tenn. Aug. 16, 2017).

In a case in which petitioner appealed the summary dismissal of his petition for a writ of error coram nobis, the court of criminal appeals concluded that statements made by four witnesses did not establish petitioner's actual innocence and, therefore, did not require tolling of the one-year statute of limitations. Miles v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. July 31, 2017).

Trial court did not abuse its discretion by denying a petition for writ of error coram nobis without an evidentiary hearing because petitioner did not file his petition within the statute of limitations and due process concerns did not require tolling the statute of limitations, as the discovery of witness statements after making an open records request in 2017 did not arise after the limitations period. It appeared from the record that the information was made available to trial counsel before trial but strategically not used at trial. Skinner v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 528 (Tenn. Crim. App. July 16, 2018).

If a petition for a writ of error coram nobis fails to show on its face either that it has been timely filed in accordance with T.C.A. § 27-7-103 or specific facts showing why the petitioner is entitled to equitable tolling of the statute of limitations, the trial court is within its discretion to summarily dismiss it. There is no requirement that trial courts hold an evidentiary hearing prior to dismissing a coram nobis petition if the petition fails to meet the necessary prerequisites for granting coram nobis relief. If the averments in the petition are insufficient to warrant relief, the petition may be dismissed prior to any response from the state and without a hearing. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

If the coram nobis petition does not show on its face that it is filed within the one-year statute of limitations, the petition must set forth with particularity facts demonstrating that the prisoner is entitled to equitable tolling of the statute of limitations: To be entitled to equitable tolling, a prisoner must demonstrate with particularity in the petition: (1) that the ground or grounds upon which the prisoner is seeking relief are later arising grounds, that is grounds that arose after the point in time when the applicable statute of limitations normally would have started to run; and (2) that, based on the facts of the case, the strict application of the statute of limitations would effectively deny the prisoner a reasonable opportunity to present his or her claims. A prisoner is not entitled to equitable tolling to pursue a patently non-meritorious ground for relief. Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Trial court did not err by dismissing defendant's petition for writ of error coram nobis without an evidentiary hearing or appointment of counsel because the petition was insufficient on its face, as defendant failed to provide any evidence to substantiate his claim that the grand jury foreperson signed his indictment without being sworn in, his claim against his former attorney did not qualify as newly discovered evidence, and he failed to show how he was without fault in not discovering cell phone evidence sooner. In addition, defendant filed his petition more than seven years after the expiration of the statute of limitations and the petition failed to sufficiently explain why he was entitled to equitable tolling. Reed v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Aug. 31, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 56 (Tenn. Jan. 18, 2019), cert. denied, Reed v. Tennessee, 204 L. Ed. 2d 234, 139 S. Ct. 2035, — U.S. —, 2019 U.S. LEXIS 3289 (U.S. May 13, 2019).

Trial court properly denied defendant's petition for writ of error coram nobis because, while defendant was reasonably diligent in securing an affidavit and filing his petition for the writ within just a few months of a victim's conversation with a private investigator, the victim's recanted testimony was not likely to have changed the outcome of defendant's trial where the home invasion at issue took place over two decades ago and the majority of her hearing testimony was merely cumulative of her trial testimony. Hayes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. July 19, 2019).

Statute of limitations was properly tolled in the interest of justice as the grounds for relief arose after the statute of limitations expired, and thus, a strict application of the limitations period would have effectively denied petitioner a reasonable opportunity to present the claim. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. Aug. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 577 (Tenn. Dec. 5, 2019).

Petition for writ of error coram nobis was untimely, and therefore it was properly denied, because petitioner's judgments were entered on October 12, 2000 and his petition was not filed until January 12, 2015. Equitable tolling was not warranted because the petition was filed 17 months after discovering the alleged Brady material, and though petitioner was pursuing his Brady claims in federal court during the 17-month delay, it was well within his control to separately file a state petition for writ of error coram nobis while his federal habeas claims were pending but he failed to do so. Eakes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 14, 2020).

Trial court did not err by summarily dismissing the petition for writ of error coram nobis because the petition was untimely as it was filed 16 years after he was sentenced to life without parole and petitioner failed to establish equitable tolling of the one-year statute of limitations as the petition failed to articulate with particularity the grounds upon which he claimed he was entitled to equitable tolling. Munn v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. May 14, 2020).

15. Petition Properly Denied.

Petitioner's application for a writ of error coram nobis was untimely because it was filed nearly twenty-eight years after the judgments became final, and due process did not require tolling the one-year statute of limitations; petitioner was on notice that the federal habeas corpus proceeding did not toll the statute of limitations for the state action, and he waited an additional three and one-half years to file his coram nobis claim. King v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 427 (Tenn. Ct. App. May 28, 2015).

Trial court properly dismissed as untimely appellant's petition for writ of error coram nobis. Appellant's judgment became final in 2008, but appellant did not file his petition for a writ of error coram nobis until 2014, well outside the one-year statute of limitations period set forth in T.C.A. § 27-7-103. Brown v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Nov. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 253 (Tenn. Apr. 13, 2017).

There was accredited testimony of an open file discovery policy at the district attorney's office, and petitioner failed to provide any evidence other than his belief that statements were withheld by the State, and the coram nobis court did not abuse its discretion in denying relief under T.C.A. § 27-7-103. Miller v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 631 (Tenn. Sept. 21, 2017).

While impeachment evidence could serve as a basis for coram nobis relief under T.C.A. § 27-7-103, petitioner had not established that this evidence alone might have led to a different outcome, and petitioner was not entitled to relief. Miller v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 631 (Tenn. Sept. 21, 2017).

Inmate was not entitled to a writ of error coram nobis barring the inmate's execution due to intellectual disability because the inmate did not (1) allege newly discovered evidence or (2) show the statute of limitations which otherwise barred the petition was tolled. Ivy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 64 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 298 (Tenn. May 18, 2018).

Summary dismissal of defendant's second petition for writ of error coram nobis was appropriate because the petition was time-barred as the petition was filed more than a year after defendant's conviction became final and defendant failed to show grounds for relief. Furthermore, a statement by one affiant was mere speculation, statements by a second affiant were cumulative of defendant's trial testimony, and defendant did not assert that a third affiant was to provide new or additional testimony. Pulliam v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 462 (Tenn. July 19, 2018).

In a case in which defendant was convicted of, inter alia, possession of more than 26 grams of cocaine with the intent to sell or deliver within a drug-free zone, even assuming that defendant was entitled to due process tolling, the trial court did not abuse its discretion in denying coram nobis relief because the trial court rejected defendant's claim that an individual's affidavit qualified as substantive admissible evidence which could have resulted in a different judgment had it been presented at trial as the individual's refusal to answer questions about the case under oath undercut the veracity and legitimacy of the information contained in the affidavit in which he admitted to owning the drugs. Shaw v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. Apr. 17, 2019).

16. Affirmative Defense.

Because the State did not raise the statute of limitations as an affirmative defense, the court of criminal appeals had to consider the merits of the petition for a writ of coram nobis. Burgess v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 926 (Tenn. Crim. App. Nov. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 227 (Tenn. Mar. 22, 2016).

Although the trial court concluded that the petition for writ of error coram nobis was time barred, the State did not plead the statute of limitations as an affirmative defense in the trial court, and thus, the court of criminal appeals considered the petition on its merits. Nunley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 3, 2017), aff'd, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

Petitioner was given notice that his petition for writ of error coram nobis under T.C.A. § 27-7-103 might be barred by the statute of limitations because he specifically addressed the late filing of the petition in his petition, and thus the State did not waive the statute of limitations defense. Young Bok Song v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 505 (Tenn. Aug. 16, 2017).

Petition for a writ of error coram nobis is subject to being summarily dismissed if it does not show on its face that it has been timely filed and that compliance with the timely filing requirement in T.C.A. § 27-7-103 is an essential element of a coram nobis claim. Accordingly, the statute of limitations set forth in § 27-7-103 is not an affirmative defense that must be specifically raised by the state in error coram nobis cases; instead, the coram nobis petition must show on its face that it is timely filed. Prior cases are overruled to the extent that they hold otherwise, including, but not limited to, Wilson v. State, 367 S.W.3d 229, 2345 (Tenn. 2012); Harris v. State, 301 S.W.3d 141, 144, 2010 Tenn. LEXIS 8 (Tenn. 2010); State v. Harris, 102 S.W.3d 587, 593, 2003 Tenn. LEXIS 313 (Tenn. 2003); Sands v. State, 903 S.W.2d 297, 299, 1995 Tenn. LEXIS 331 (Tenn. 1995). Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

NOTES TO DECISIONS

1. Money Decree.

Money decree will not be superseded without bond, as required by this section. Clark v. Henderson, 1 Cooper's Tenn. Ch. 506 (1873).

NOTES TO DECISIONS

1. Time Limitations.

Trial court did not err in tolling the statute of limitations because petitioner obtained alleged newly discovered evidence after the limitations period commenced, and petitioner filed his application for writ of error coram nobis less than one year after he gained access to the evidence; a strict application of the limitations period would effectively deny petitioner a reasonable opportunity to present his claim. Wilson v. State, 367 S.W.3d 229, 2012 Tenn. LEXIS 288 (Tenn. Apr. 20, 2012), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. July 30, 2014), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

2. Petition Denied.

Court of criminal appeals erred in reversing the trial court's order dismissing petitioner's application for a writ of error coram nobis because the assistant district attorney's handwritten note petitioner discovered was not newly discovered evidence on which a petition for writ of error coram nobis could be based; the handwritten note recording the assistant prosecutor's impressions as to the credibility of witnesses qualified as a memorandum prepared in anticipation of trial and constituted work product under Tenn. R. Crim. P. 16(a)(2), and thus, the note was neither discoverable nor admissible. Wilson v. State, 367 S.W.3d 229, 2012 Tenn. LEXIS 288 (Tenn. Apr. 20, 2012), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. July 30, 2014), overruled in part, Nunley v. State, 552 S.W.3d 800, 2018 Tenn. LEXIS 382 (Tenn. July 19, 2018).

NOTES TO DECISIONS

1. Assignment of Errors.

2. —Failure to File.

The failure to assign errors, the assignment being in the nature of a declaration, may be taken advantage of as the failure to declare in other actions may. Crouch v. Mullinix, 48 Tenn. 478, 1870 Tenn. LEXIS 94 (1870); Carney v. McDonald, 57 Tenn. 232, 1872 Tenn. LEXIS 419 (1872).

A petition for writ of error coram nobis will be dismissed by judgment by default and the supersedeas discharged where the petitioner fails to file assignment of errors. Carney v. John McDonald Co., 1 Shannon's Cases 235 (1872).

3. —Rules of Pleading.

The assignment of errors of fact having been filed, the rules of pleading in actions at law obtain. Crouch v. Mullinix, 48 Tenn. 478, 1870 Tenn. LEXIS 94 (1870); Carney v. McDonald, 57 Tenn. 232, 1872 Tenn. LEXIS 419 (1872).

4. —Testing Sufficiency.

The assignment of errors should embrace the grounds of the application and the grounds of the defense (and the grounds of the defense are the grounds upon which the judgment should be annulled), and a general demurrer to the whole assignment will be sufficient to dismiss the writ, if the reasons assigned for the application are insufficient; and, a fortiori, if both reasons for the application and the errors assigned are insufficient. Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

5. Traverse of Petition — Effect.

Where there is no assignment of errors in facts, the defendant's plea, traversing the facts stated in the petition, does not form any issue. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851).

6. Errors Subject to Correction.

An appeal in the nature of a writ of error does not vacate, but only suspends the judgment of the court below, and no errors can be corrected except those committed against the party prosecuting writ or appeal. Gallena v. Sudheimer, 56 Tenn. 189, 1872 Tenn. LEXIS 125 (1872).

NOTES TO DECISIONS

1. Assignment of Errors.

The grounds on which the reversal of the former judgment is asked must be stated in the petition and these grounds must be made the basis of the issue to be presented in a more formal assignment of errors, to be made under the direction of the court. Elliott v. R. C. McNairy & Co., 60 Tenn. 342, 1872 Tenn. LEXIS 504 (1873).

NOTES TO DECISIONS

1. Judgment for Petitioner — Requisite.

In a proceeding by writ of error coram nobis, where the case is adjudicated in favor of the petitioner, the proper judgment to be entered is that the judgment complained of and sought to be avoided shall be annulled, and for the costs of the proceeding; and it is error to order that the original cause be reinstated on the docket for a new trial, for the judgment upon the writ of error coram nobis is final, as relates to the former judgment and suit. Crawford v. Williams, 31 Tenn. 341, 1851 Tenn. LEXIS 82 (1851); Anderson & Co. v. Hagge, 3 Shan. 672 (1875).

Where the original judgment sought to be reversed and annulled upon writ of error coram nobis has been paid, the court, upon vacating and annulling such judgment, cannot legally render judgment for the refundment of the money so paid. Bigham v. Brewer, 36 Tenn. 432, 1857 Tenn. LEXIS 27 (1856).

2. Appellate Court's Jurisdiction.

An appeal from an order of lower court overruling a demurrer to the petition for writ brings up only the court's action thereon, and the Supreme Court is without jurisdiction although the judgment in the original case exceeded $1,000, and the cause should be transferred to the court of civil appeals. Wright v. Curtis, 145 Tenn. 623, 237 S.W. 1103, 1921 Tenn. LEXIS 98 (1922).

NOTES TO DECISIONS

1. Nature and Scope of Remedy.

Tennessee Const., art. VI, § 10 does not restrict the use of the common law writ of certiorari but serves as a guaranty of the continuance of a power which was already vested. Puckett v. Broome, 53 Tenn. App. 663, 385 S.W.2d 762, 1964 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1964).

Where the county and its officials had no right to question the legality of the state board of equalization, such a situation was intolerable, unreasonable and contrary to the intent of the Constitution and statutes. Polk County v. State Board of Equalization, 484 S.W.2d 49, 1972 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1972).

The procedural framework for review under both the common law and statutory writs appears in ch. 9 of this title. Fairhaven Corp. v. Tennessee Health Facilities Com., 566 S.W.2d 885, 1976 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1976).

A petitioner is not justified in deciding for himself that the courts of Tennessee will deny him relief on his claim for procedural reasons, and before bringing any claim to federal court, the petitioner must be sure that he has first taken it to the state courts; that is the requirement of the vital exhaustion-of-remedies doctrine. Wright v. Trammell, 647 F. Supp. 1, 1985 U.S. Dist. LEXIS 19942 (M.D. Tenn. 1985), aff'd, 802 F.2d 461, 1986 U.S. App. LEXIS 27817 (6th Cir. Tenn. 1986).

The writ of certiorari lies at common law to review and supervise the proceedings of inferior tribunals, but does not take the place of appeal or writ of error, and brings up the entire record to determine whether there has been an excess or absence of jurisdiction, or failure to proceed according to the essential requirements of the law. Clark v. Metropolitan Government of Nashville & Davidson County, 827 S.W.2d 312, 1991 Tenn. App. LEXIS 815 (Tenn. Ct. App. 1991).

Review under the common law writ is limited to whether the inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally, arbitrarily, or fraudulently. Citizens for Collierville v. Town of Collierville, 977 S.W.2d 321, 1998 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1998).

2. —Generally.

Certiorari will lie in a proper case, and is a substantive mode for the correction of errors to which a party is entitled as a matter of right as much as to any other mode for the correction of errors of inferior tribunals. Tennessee C. R. Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012, 1902 Tenn. LEXIS 96 (1903).

Where general sessions judges revoked power of bail bondsmen and bondsmen in order to review such decision obtained certiorari from the circuit court and there was a difference of opinion as to whether permitting the giving of bonds was a ministerial or discretionary power of the court the Supreme Court on appeal considered it as having been brought to the circuit court by certiorari rather than by mandamus which would have been the proper remedy if the duty to permit bond had been ministerial. Taylor v. Waddey, 206 Tenn. 497, 334 S.W.2d 733, 1960 Tenn. LEXIS 388 (1960).

The common law writ of certiorari is an extraordinary remedy which is embodied in this section and generally is to be utilized where an inferior tribunal is acting illegally, has exceeded its jurisdiction or where there is no other plain, speedy or adequate remedy. Foster v. First Nat'l Bank, 221 Tenn. 688, 430 S.W.2d 450, 1968 Tenn. LEXIS 495 (1968).

This section provides for the so-called common law writ of certiorari. Fairhaven Corp. v. Tennessee Health Facilities Com., 566 S.W.2d 885, 1976 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1976).

This section provides for the so-called common-law writ of certiorari while § 27-8-102 provides for the so-called statutory writ. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

3. —Common Law.

The writ of certiorari was a remedy in civil cases at common law, though its earliest use was as a remedy in criminal cases. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870, 1916 Tenn. LEXIS 147 (1916).

The writ of certiorari lies at common law to review and supervise the proceedings of inferior tribunals by a superior tribunal, but does not take the place of appeal or writ of error, and brings up the entire record to determine whether there has been an absence or excess of jurisdiction, or failure to proceed according to the essential requirements of the law. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870, 1916 Tenn. LEXIS 147 (1916); State ex rel. McMorrough v. Hunt, 137 Tenn. 243, 192 S.W. 931, 1916 Tenn. LEXIS 75 (1917); Jones v. State ex rel. Juvenile Court, 139 Tenn. 547, 201 S.W. 760, 1918 Tenn. LEXIS 4 (1918); Binford v. Carline, 9 Tenn. App. 364, — S.W.2d —, 1928 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1928); State ex rel. McCabe ex rel. v. American Trust Co., 161 Tenn. 570, 32 S.W.2d 1036, 1930 Tenn. LEXIS 41 (1930); Campbell v. Lee, 12 Tenn. App. 293, — S.W.2d —, 1930 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1930).

The common law use of the writ of certiorari, was always to review proceedings of an inferior tribunal at an intermediate stage, and never to review a cause after final judgment. Bragg v. Boyd, 193 Tenn. 507, 246 S.W.2d 575, 1952 Tenn. LEXIS 317 (1952).

Courts review only questions of law under common law writ of certiorari. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 195 Tenn. 593, 261 S.W.2d 233, 1953 Tenn. LEXIS 384 (1953).

If a writ of certiorari is issued exclusively under this section it is equivalent to a common law writ of certiorari and the hearing in the circuit court must be limited to the question whether or not the inferior tribunal, board or officer has exceeded the jurisdiction conferred or is acting illegally. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

This statute is merely declaratory of the common law. McGee v. State, 207 Tenn. 431, 340 S.W.2d 904, 1960 Tenn. LEXIS 476 (1960); Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960).

If an inferior tribunal, board or officer is exercising judicial functions either the common law or statutory writ may be employed to review such action but review under the common law writ is limited to a determination of whether the inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction conferred or is acting illegally. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965); Pack v. Royal-Globe Ins. Cos., 224 Tenn. 452, 457 S.W.2d 19, 1970 Tenn. LEXIS 343 (1970).

Question of jurisdiction of criminal court to revoke corporate charter in suit to abate public nuisance and revoke corporate charter was subject to review by Supreme Court under petition for writ of certiorari. Pan-O-Ram Club, Inc. v. State, 217 Tenn. 137, 395 S.W.2d 803, 1965 Tenn. LEXIS 526 (1965).

On review of disapproval of rate increase by commissioner of insurance and banking (now commissioner of commerce and insurance) by common law writ of certiorari, circuit court was not entitled to substitute its judgment for that of the commissioner or to make finding that filing was to be deemed approved by commissioner. Pack v. Royal-Globe Ins. Cos., 224 Tenn. 452, 457 S.W.2d 19, 1970 Tenn. LEXIS 343 (1970).

“Certiorari” at common law performed the function of aid to a review and supervision of the proceedings of inferior boards and tribunals by a superior tribunal, not taking the place of appeal or writ of error, but bringing up the entire record in order to a determination whether there had been an absence or excess of jurisdiction, or a failure to proceed according to the essential requirements of the law. Lutz v. John Bouchard & Sons Co., 575 S.W.2d 7, 1974 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1974).

A misapplication of a principle of law by the Board of Claims will not invoke a right to review of its findings by the common-law writ of certiorari. Henry v. Board of Claims, 638 S.W.2d 825, 1982 Tenn. App. LEXIS 382 (Tenn. Ct. App. 1982).

When defendants filed petitions for writs of certiorari in the Tennessee Court of Criminal Appeals contesting trial courts' denials of defendants' petitions for expungement of dismissed criminal charges, defendants' failure to comply with T.C.A. § 27-8-106 did not deprive the appellate court of jurisdiction because: (1) the statute applied to writs of certiorari in civil cases, so defendants'  cases were reviewed by a common law writ of certiorari; and (2) no statute imposed similar procedural requirements on petitions for writs of certiorari in criminal cases. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

4. —Common Law and Statutory Certiorari Distinguished.

The common law writ of certiorari, as distinguished from the statutory writ, or certiorari in lieu of an appeal, does not lie for the correction of technical or formal errors, not affecting the jurisdiction or power, nor for the correction of defects that are not radical, or not amounting to an illegality that is fundamental, as distinguished from an irregularity. State ex rel. McMorrough v. Hunt, 137 Tenn. 243, 192 S.W. 931, 1916 Tenn. LEXIS 75 (1917).

Common law writ is limited to an external examination of the validity of the proceedings of the inferior tribunal and does not review the judgment on the law or the facts, but such limitation will not affect the use of statutory certiorari in lieu of appeal where a party has been deprived of right to appeal without fault of his own. Cummings v. Patterson, 54 Tenn. App. 75, 388 S.W.2d 157, 1964 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1964).

If an inferior tribunal, board or officer is exercising judicial functions either the common law or statutory writ may be employed to review such action but review under the common law writ is limited to a determination of whether the inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction conferred or is acting illegally. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965).

5. —Substitute for Appeal.

Writ of certiorari to review actions of city board the decisions of which are made final by private act would not lie as a substitute for appeal; the writ must be limited to its common law functions of securing a judicial determination of the legality of the board's action. Cox v. Bristol, 28 Tenn. App. 136, 187 S.W.2d 637, 1944 Tenn. App. LEXIS 73 (Tenn. Ct. App. 1944).

Certiorari cannot be resorted to as a substitute for appeal except when a case is made out in the petition showing that the appeal was defeated (1) by the oppressive or erroneous act of the court, (2) by the willful or negligent act of the clerk, (3) by the contrivance or procurement of the adverse party, (4) by inevitable accident, or (5) by the blameless misfortune of the petitioner. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

Certiorari as a substitute for appeal from justice of the peace (now general sessions) court may properly be allowed upon a showing of inability to give security within the statutory time and due diligence in the attempt to have the appeal perfected. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

Where defendants to suit in justice of the peace (now general sessions) court arising out of automobile accident which was brought in the county of the accident as authorized by § 20-402 (repealed) were unable to procure appeal bond in the county of the suit because they were residents of another county but upon returning to the county of their residence mailed appeal bond to justice of the peace within such time as to have normally reached the justice of the peace within the statutory time allowed for appeal but such bond did not in fact reach the justice within that time, defendants were properly granted certiorari and supersedeas removing the cause to the circuit court. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

6. —Right of Appeal — Effect as to Writ.

Under Tenn. Const., art. VI, § 10, and under this Code, the existence of a right of appeal does not bar the issuance of the common law writ of certiorari. The affirmative provision was not intended to work a change in the common law function of the writ as a supervisory or superintending writ. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870, 1916 Tenn. LEXIS 147 (1916); State ex rel. McMorrough v. Hunt, 137 Tenn. 243, 192 S.W. 931, 1916 Tenn. LEXIS 75 (1917).

There being the right of appeal from a decision made in a habeas corpus case there was no ground for writ of certiorari. Tragle v. Burdette, 222 Tenn. 531, 438 S.W.2d 736, 1969 Tenn. LEXIS 458 (1969).

Although according to Adler, the rules of appellate procedure did not provide for an attorney to appeal a trial court's decision denying expungement of her records in a contempt action brought in an underlying divorce suit, the Supreme Court of Tennessee permitted an appeal to proceed as a petition for a writ of certiorari pursuant to T.C.A. § 27-8-10. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

7. —Discretion as to Issuance.

While the issuance of a writ of certiorari is a matter within the discretion of the court, and a writ may be refused which would otherwise be issued where substantial justice has been reached by an inferior tribunal, or where public inconvenience or confusion would follow the writ, yet, where the Supreme Court had found that one removed from the office of chief of police of a city was entitled to a certiorari to review the removal, the contention that the court in its discretion might decline to entertain the writ is foreclosed, according to the great weight of authority. Knoxville v. Connors, 139 Tenn. 45, 201 S.W. 133, 1917 Tenn. LEXIS 86 (1918).

Certiorari to review the proceedings of an inferior tribunal is not granted as a matter of right but is issued in the judicial discretion of the court to prevent a substantial wrong. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

The issuance of the common law writ of certiorari is a discretionary matter not to be issued as a matter of right. Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960); Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965).

Although the complaint was incorrectly designated as a suit for declaratory judgment, the court could treat plaintiffs' complaint as a petition for a common law writ of certiorari. McCallen v. Memphis, 786 S.W.2d 633, 1990 Tenn. LEXIS 103 (Tenn. 1990).

While there is a statutory, procedural distinction between common law certiorari and declaratory judgment, there is no sound logic to maintain different standards of substantive review. Whether the action by the local governmental body is legislative or administrative in nature, the court should refrain from substituting its judgment for the broad discretionary authority of the local governmental body. An invalidation of the action should take place only when the decision is clearly illegal, arbitrary, or capricious. McCallen v. Memphis, 786 S.W.2d 633, 1990 Tenn. LEXIS 103 (Tenn. 1990).

An action should be invalidated only if it constitutes an abuse of discretion, and if any possible reason exists to justify the action, such action should be upheld. Citizens for Collierville v. Town of Collierville, 977 S.W.2d 321, 1998 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1998).

8. —Diligence.

Where defendant knew the time the cause was set for hearing but did not investigate until execution some four months later and after the passage of one regular term of court, he did not show due diligence and was not entitled to certiorari. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

9. —Trial De Novo.

Where order of public utilities commission dismissed a complaint regarding unreasonably high rates, and petition for writ of certiorari was filed in circuit court, the relief sought was a trial de novo under certiorari as substitute for appeal. Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

10. —Review by Supreme Court.

The writ of certiorari operates to bring the cause from the lower court into the Supreme Court for review, and for such action by the Supreme Court as the facts and law warrant. Clements v. Roberts, 144 Tenn. 129, 230 S.W. 30, 1920 Tenn. LEXIS 66 (1921), rehearing denied, 144 Tenn. 152, 231 S.W. 902, 1920 Tenn. LEXIS 67 (1921).

Where trial court and Supreme Court had previously sustained validity of annexation ordinance and annexation procedure and same complainants filed suit in chancery court seeking to enjoin collection of taxes in annexed area and same basic issues were involved as in previous proceeding, Supreme Court, on application of defendants, issued supersedeas as to action in chancery court and permanent injunction against complainants in that suit but did not find it necessary to issue writ of certiorari where record in cause was filed with it in accordance with Supreme Court Rule 10 and such record could be fully considered. State ex rel. Stall v. Knoxville, 211 Tenn. 428, 365 S.W.2d 433, 1963 Tenn. LEXIS 363 (1963).

In a suit to review by means of the common law writ of certiorari, a motion for a new trial was not a prerequisite to the appeal under § 27-3-103 (repealed). Glankler v. Memphis, 481 S.W.2d 376, 1972 Tenn. LEXIS 343 (Tenn. 1972).

Supreme Court had jurisdiction under § 27-8-101 to review by writ of certiorari an interlocutory order of Court of Criminal Appeals illegally dismissing petition for common law writ of certiorari and supersedeas seeking to have that court supersede and reverse judgment of criminal court which improperly, and without basis in law, granted discovery against state of tests, analysis and examinations made for state by Federal Bureau of Investigation and statements of codefendants. State v. Dougherty, 483 S.W.2d 90, 1972 Tenn. LEXIS 360 (Tenn. 1972).

Where the conditions of § 27-8-101, which authorizes the writ of certiorari in certain cases, as construed by decisional law, are met, the supreme court has the discretion to entertain a petition for the common law writ to review the action of the court of criminal appeals in granting or denying such a writ. Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978).

11. Grounds for Writ.

Although the general rule is that the common law writ of certiorari should be restricted to those cases where an inferior tribunal has exceeded the jurisdiction conferred or is acting illegally and there is no other plain, speedy or adequate remedy, and that as a general proposition it does not lie to inquire into the correctness of the judgment where the court has jurisdiction, there are exceptions to the general rule which include, but are not restricted to, the following: (1) where the ruling of the court below represents a fundamental illegality; (2) where the ruling constitutes a failure to proceed according to the essential requirements of the law; (3) where the ruling is tantamount to the denial to either party of a day in court; (4) where the action of the trial judge was without legal authority; (5) where the action of the trial judge constituted a plain and palpable abuse of discretion; (6) where either party has lost a right or interest that may never be recaptured. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

The scope of review under a common law writ of certiorari is limited to the inquiry of whether the administrative body has exceeded its jurisdiction or acted illegally. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

The violation of a taxpayer's right to equal protection of the law constituted an illegality that was reviewable by the court on petition for writ of certiorari. Louisville & N. R. Co. v. Public Service Com., 493 F. Supp. 162, 1978 U.S. Dist. LEXIS 17954 (M.D. Tenn. 1978), aff'd, 631 F.2d 426, 1980 U.S. App. LEXIS 13669 (6th Cir. Tenn. 1980).

The writ is available whenever an inferior tribunal is acting illegally or exceeding its jurisdiction. Parker v. Turner, 626 F.2d 1, 1980 U.S. App. LEXIS 15991 (6th Cir. Tenn. 1980).

Denial of the attorney's request that the trial court expunge the public records relating to the charge of criminal contempt was improper, where T.C.A. § 40-32-101(a)(1) applied insofar as the contempt charges were criminal in nature; further, the attorney's petition was properly treated as a petition for a writ of certiorari, because there was no right to appeal an unfavorable ruling on expungement and thus, there was no other plain, speedy, or adequate remedy without granting the writ. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

12. —Excess and Want of Jurisdiction as Grounds.

The Supreme Court may exercise its appellate jurisdiction by certiorari and by original proceedings in aid of its appellate jurisdiction; and it may, by certiorari, assume jurisdiction before final decision of the lower court acting illegally. State ex rel. Conner v. Herbert, 127 Tenn. 220, 154 S.W. 957, 1912 Tenn. LEXIS 24 (1912).

Under this section, it is the duty of the Supreme Court to grant the writs of certiorari and supersedeas, when the orders of the Court of Appeals and its judges and those of the circuit court are beyond the jurisdiction of those courts. State ex rel. Timothy v. Alexander, 132 Tenn. 439, 178 S.W. 1107, 1915 Tenn. LEXIS 32 (1915).

Under this section, excess of jurisdiction, as distinguished from absence of jurisdiction, means that an act, though within the general powers of the tribunal, is not authorized and is invalid, where the conditions which alone authorize the exercise of the general power in respect of it are wanting, illegality of action and excess of jurisdiction being placed on the same plane, and in neither event is the court deprived of its judgment in respect of the inadequacy of appeal as a mode of review, and of its right to issue the common law writ of certiorari. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870, 1916 Tenn. LEXIS 147 (1916); Campbell v. Lee, 12 Tenn. App. 293, — S.W.2d —, 1930 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1930).

Where chancery court had no jurisdiction and therefore acted illegally in granting injunctions upon allegations that school athletic association acted wrongfully in excluding transferring students from participation in athletics, petitions for writs of certiorari and supersedeas would be sustained by Supreme Court and chancery proceedings dismissed. Tennessee Secondary School Athletic Ass'n v. Cox, 221 Tenn. 164, 425 S.W.2d 597, 1968 Tenn. LEXIS 455 (1968).

13. —“Acting Illegally” — Meaning.

Where the chancellor is acting illegally or in excess of his jurisdiction, the Supreme Court may grant writs of certiorari and supersedeas. Gilbreath v. Willett, 148 Tenn. 92, 251 S.W. 910, 1922 Tenn. LEXIS 80, 28 A.L.R. 1147 (1922).

The phrase “is acting illegally”, as used in this section, indicates that the superior tribunal may interfere to supervise the proceedings before the inferior tribunal at any stage. Bragg v. Boyd, 193 Tenn. 507, 246 S.W.2d 575, 1952 Tenn. LEXIS 317 (1952).

Where city clerk in refusing to certify petitions for recall to the election commissioners acted fraudulently, illegally and beyond her jurisdiction the common law writ of certiorari or one issued under this section was clearly applicable. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

The phrase “exceeded the jurisdiction conferred” and the phrase “acting illegally” both refer to action by the inferior tribunal beyond, not within, its jurisdiction. McGee v. State, 207 Tenn. 431, 340 S.W.2d 904, 1960 Tenn. LEXIS 476 (1960); Pack v. Royal-Globe Ins. Cos., 224 Tenn. 452, 457 S.W.2d 19, 1970 Tenn. LEXIS 343 (1970).

Certiorari is proper where lower court illegally suppressed evidence and left petitioner with no other plain, speedy or adequate remedy. State v. Gant, 537 S.W.2d 711, 1975 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. 1975).

14. Use of Writ — Examples.

Review of action of the real estate commission in denying issuance of real estate broker's license was by common law writ of certiorari as provided by this section and chancellor's duty, after hearing the matter as provided in § 27-9-111, was to determine if the commission exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently with any additional evidence to be introduced at the court hearing to be limited to that question. Brown v. Tennessee Real Estate Com., 494 S.W.2d 506, 1972 Tenn. App. LEXIS 275 (Tenn. Ct. App. 1972), cert. denied, 414 U.S. 877, 94 S. Ct. 54, 38 L. Ed. 2d 122, 1973 U.S. LEXIS 898 (1973).

Where the state's appeal to the court of criminal appeals was dismissed on the grounds that the state had no right of appeal from the action of a trial judge in suppressing evidence, even though the order of suppression presented difficulties in the way of proceeding further with the prosecution of the case and was plainly erroneous, the state's only avenue of relief against that suppression order was by the common law writ of certiorari. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

Denial of the petitioner's motion for expungement of any records relating to the charge of child abuse was reversed and remanded pursuant to his writ of certiorari because the 2003 amendment to the expungement statute could not be used to deny the petitioner's request for expungement. State v. Hanners, 235 S.W.3d 609, 2007 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 12, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 676 (Tenn. Aug. 13, 2007).

15. —Challenge of Administrative Action.

As the action of city council giving approval to development plan was administrative rather than legislative in nature, any challenge of the action was properly by common law writ of certiorari. McCallen v. Memphis, 786 S.W.2d 633, 1990 Tenn. LEXIS 103 (Tenn. 1990).

The common law writ of certiorari, not the statutory writ, was the appropriate procedure for review of resolution of city council approving planned development. McCallen v. Memphis, 786 S.W.2d 633, 1990 Tenn. LEXIS 103 (Tenn. 1990).

A crucial test in distinguishing legislative from administrative acts is whether the action taken, resolution or ordinance, makes new law or executes one already in existence. McCallen v. Memphis, 786 S.W.2d 633, 1990 Tenn. LEXIS 103 (Tenn. 1990).

Review by court of appeals and trial court of city council's denial of housing authority's application for public housing project was limited to whether such action exceeded its jurisdiction or was illegal, arbitrary or fraudulent. Gallatin Hous. Auth. v. City Council, 868 S.W.2d 278, 1993 Tenn. App. LEXIS 453 (Tenn. Ct. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. App. LEXIS 505 (Tenn. Ct. App. Aug. 4, 1993).

The proper procedure for a prisoner seeking review of a disciplinary action of the Department of Correction is by petition for writ of certiorari. Bishop v. Conley, 894 S.W.2d 294, 1994 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. 1994).

When city employees sought review of the decision of a municipal panel which denied their disability claims, their use of a writ of certiorari, under T.C.A. § 27-8-101 was inappropriate because the panel was governed by the Uniform Administrative Procedures Act, § T.C.A. § 4-5-101 et seq., so review was properly sought under T.C.A. § 4-5-322. Tidwell v. City of Memphis, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

Record did not indicate that the deputy police chief had authority to determine the “good standing” issue of the retired police officers seeking retirement benefits, and nothing indicated that the officers could have administratively appealed the deputy's act; on remand, the trial court had to adjudicate the declaratory judgment. Bernard v. Metro. Gov't of Nashville & Davidson County, 237 S.W.3d 658, 2007 Tenn. App. LEXIS 173 (Tenn. Ct. App. Mar. 28, 2007), appeal denied, Bernard v. Metro Gov't, — S.W.3d —, 2007 Tenn. LEXIS 872 (Tenn. Sept. 24, 2007).

On certiorari review, a trial court's decision upholding a decision to terminate a deputy's employment based on the results of random drug test was reversed, because the civil service merit board's decision to terminate the deputy's employment was arbitrary, as the sheriff's department was unable to present any evidence to establish that the specimen at issue belonged to the deputy, and the department was unable to establish that the specimen bar code matched the laboratory form signed by the deputy; there was no testimony or evidence regarding the procedures followed on the date the deputy's specimen was taken, and the identity of the laboratory employee who actually received the deputy's urine sample was unknown. Davis v. Luttrell, — S.W.3d —, 2007 Tenn. App. LEXIS 771 (Tenn. Ct. App. Dec. 17, 2007), rev'd, Davis v. Shelby County Sheriff's Dep't, 278 S.W.3d 256, 2009 Tenn. LEXIS 70 (Tenn. 2009).

Summary judgment dismissal of complaint as it pertained to the board's ten-day suspension of the teacher's employment was proper because complaint of March 9, 2007 was obviously filed well over 60 days past the teacher's March 2006 suspension and was therefore time-barred under T.C.A. § 27-9-102; while the teacher would have been entitled to pursue his complaint as to the ten-day suspension by filing a petition for writ of certiorari, he was allotted a limited amount of time within which to do so under T.C.A. § 27-9-102. Bailey v. Blount County Bd. of Educ., — S.W.3d —, 2008 Tenn. App. LEXIS 503 (Tenn. Ct. App. Aug. 27, 2008), aff'd in part, rev'd in part, 303 S.W.3d 216, 2010 Tenn. LEXIS 47 (Tenn. 2010).

The remedy of certiorari provided by T.C.A. §§ 27-8-101, 27-9-101–27-9-113, rather than a declaratory judgment action, will continue to be the proper remedy for one who seeks to overturn the determination of a Board of Zoning Appeals as provided by T.C.A. § 13-7-106 et seq. and T.C.A. § 13-7-205 et seq.Steppach v. Thomas, 346 S.W.3d 488, 2011 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 28, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 736 (Tenn. July 15, 2011).

Trial court erred in a T.C.A. § 27-8-101 certiorari proceeding in expunging a student's 10-day suspension because the student was afforded due process when he was allowed to submit a written statement to the principal before his suspension, when he orally presented his version of events to the hearing board, and when he appealed the board's decision to the director's designee; the dual role of a disciplinary coordinator did not violate due process. There was material evidence showing that the student's conduct constituted reckless endangerment as defined in the Code of Conduct. Christian Heyne v. Metro. Nashville Bd. of Pub. Educ., — S.W.3d —, 2011 Tenn. App. LEXIS 235 (Tenn. Ct. App. May 6, 2011), aff'd, Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

On review under T.C.A. § 27-8-101, where plaintiff failed to show that billboards were legal uses prior to an amendment to town ordinances, prohibiting them, a board of zoning appeals properly denied a request to reconstruct them under T.C.A. § 13-7-208; the board's decision was not illegal, arbitrary, or capricious. Abbington Ctr., LLC v. Town of Collierville, 393 S.W.3d 170, 2012 Tenn. App. LEXIS 95 (Tenn. Ct. App. Feb. 13, 2012), appeal denied, Abbington Ctr. v. Town of Collierville, — S.W.3d —, 2012 Tenn. LEXIS 526 (Tenn. Aug. 16, 2012).

Local government had standing to seek T.C.A. § 27-9-101 certiorari review of a Board of Zoning Appeals' (Board) decision because (1) the local government said the decision interfered with the ability to meet duties to enforce billboard distance requirements, showing aggrievement; (2) a special interest showed a causal link between the decision and the alleged injury; and (3) T.C.A. §§ 27-8-101 and 27-9-101 certiorari was the proper vehicle to review the Board's decisions. Metro. Gov't v. Bd. of Zoning Appeals of Nashville & Davidson County, — S.W.3d —, 2014 Tenn. App. LEXIS 545 (Tenn. Ct. App. Sept. 3, 2014), aff'd, Metro. Gov't of Nashville & Davidson Cnty. v. Bd. of Zoning Appeals of Nashville & Davidson Cnty., 477 S.W.3d 750, 2015 Tenn. LEXIS 1081 (Tenn. 2015).

Chancery court erred in ordering a second panel of physicians outside of Tennessee to continue an injured employee's treatment because, pursuant to the certiorari statute, the court lacked subject matter jurisdiction over the matter due to the employer's failure to exhaust the benefit review conference process. Goodyear Tire & Rubber Co. v. Davis, — S.W.3d —, 2015 Tenn. App. LEXIS 380 (Tenn. Ct. App. May 26, 2015).

Board of zoning appeals erred in issuing a billboard company and property owners permits to replace static display billboards with digital display billboards because the conversion of static billboards violated a city ordinance that did not allow digital signs in certain districts based on the height of the signs and their distance from other signs and from residential property; the ordinance was a lighting restriction, not a zoning restriction, and was not covered by the grandfather clause. Metro. Gov't of Nashville & Davidson Cnty. v. Bd. of Zoning Appeals of Nashville & Davidson Cnty., — S.W.3d —, 2017 Tenn. App. LEXIS 275 (Tenn. Ct. App. May 2, 2017), appeal denied, Metro. Gov't of Nashville & Davidson Cty. v. Bd. of Zoning Appeals of Nashville & Davidson Cty., — S.W.3d —, 2017 Tenn. LEXIS 665 (Tenn. Oct. 4, 2017).

Chancery court did not err in concluding that the common law writ of certiorari was the proper method of judicial review of a city council's actions because de novo review of the city council's decision to deny an owner/developer building permits would have violated the doctrine of separation of powers; the statutory writ of certiorari was not available because the decision to deny a building permit was an administrative function, reviewable through a common law writ proceeding. State ex rel. Howell v. Farris, — S.W.3d —, 2018 Tenn. App. LEXIS 127 (Tenn. Ct. App. Mar. 9, 2018).

16. —Deprivation of Procedural Rights.

The exercise of authority in such manner as to deprive an accused of a substantive procedural right (to compel attendance of witnesses) guaranteed by the federal and state constitutions is an essential illegality committed within actual powers which will authorize relief by certiorari. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

17. —Error of Court of Appeals.

No error of the Court of Appeals either of commission or omission, can be reviewed by the Supreme Court except upon petition for certiorari. Independent Life Ins. Co. v. Hunter, 166 Tenn. 498, 63 S.W.2d 668, 1933 Tenn. LEXIS 106 (1933).

Where Court of Appeals committed error in affirming decree of chancery court due to absence of finding, and Supreme Court granted writ of certiorari, an oral argument was not necessary, since case had not been finally determined by Court of Appeals. Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802, 1934 Tenn. LEXIS 84 (1935).

Where the Court of Appeals affirmed judgment of the circuit court without consideration of the merits of the case, such case was not finally determined by the Court of Appeals within the meaning of § 27-8-121 (repealed) providing for oral argument on granted petitions for writs of certiorari by the Supreme Court in such cases but fell within this section authorizing the writ where an inferior tribunal “has exceeded the jurisdiction conferred, or is acting illegally.” Moore v. Chadwick, 170 Tenn. 223, 94 S.W.2d 49, 1935 Tenn. LEXIS 131 (1936).

18. —Cognovit Note Default — Limitations.

Where note contained power of attorney to confess judgment and more than six years had elapsed before judgment was in fact confessed, the warrant of attorney to confess judgment was ineffective and certiorari will lie under this section to the Supreme Court on the grounds that such confession of judgment is void. Williams v. Wilborne, 170 Tenn. 289, 95 S.W.2d 41, 1935 Tenn. LEXIS 134 (1936).

19. —Bill of Exceptions — Inability to File.

Where judge overruled motion for new trial on May 14 and granted an appeal with 30 days time allowed to file bill of exceptions, but judge on June 7 vacated his office to accept appointment on Supreme Court the appellant who had neglected to request judge to sign bill of exceptions prior to June 7 was not entitled to relief under petition for certiorari and supersedeas since he was not without fault or negligence. Larkey Lumber & Wrecking Co. v. Byrnes, 181 Tenn. 405, 181 S.W.2d 361, 1944 Tenn. LEXIS 385 (1944).

20. —Review of Interlocutory Decree.

Certiorari would not lie to review interlocutory decree ordering farm sold according to law where suit is brought by vendor against bank and purchaser of property who did not retain express vendor's lien to require bank to enter credits for fire insurance proceeds received when house on property upon which bank held first trust deed and vendor held second trust deed was destroyed by fire, for injunction to prohibit bank from selling farm or foreclosing first trust deed and to have farm sold and proceeds marshaled. Wattenbarger v. Tullock, 197 Tenn. 279, 271 S.W.2d 628, 1954 Tenn. LEXIS 482 (1954).

The common law writ of certiorari is not granted to review or correct a lower court's interlocutory order which is within the jurisdiction of the court and merely an erroneous exercise of such jurisdiction. McGee v. State, 207 Tenn. 431, 340 S.W.2d 904, 1960 Tenn. LEXIS 476 (1960); Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960).

Common law certiorari would not lie to review action of criminal court in denying defendant's request to take discovery depositions of state's witnesses where court had jurisdiction of the matter. McGee v. State, 207 Tenn. 431, 340 S.W.2d 904, 1960 Tenn. LEXIS 476 (1960).

The common law writ of certiorari, and in aid thereof, the ancillary writ of supersedeas, to review an interlocutory order or decree of a lower court may issue only where the lower court has exceeded its jurisdiction or is acting illegally and where, in the judgment of the appellate court, there is no other plain, speedy or adequate remedy. Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960); Puckett v. Broome, 53 Tenn. App. 663, 385 S.W.2d 762, 1964 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1964); Ellenburg v. Hartford Acci. & Indem. Co., 56 Tenn. App. 272, 406 S.W.2d 66, 1966 Tenn. App. LEXIS 223 (Tenn. Ct. App. 1966).

Common law writ of certiorari would lie to review action of circuit court under Deposition Law of 1959 in requiring production of reports of insured to insurance carrier; such action would have effect of impairing, embarrassing or destroying contractual right of insurance carrier to have frank and free report of true facts concerning accident. Puckett v. Broome, 53 Tenn. App. 663, 385 S.W.2d 762, 1964 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1964).

The Supreme Court or a member thereof has the authority to grant the writ of certiorari and the writ of supersedeas in aid thereof to review an interlocutory order of the lower court where such court has exceeded the jurisdiction conferred and there is no other plain, speedy or adequate remedy. Tennessee Secondary School Athletic Ass'n v. Cox, 221 Tenn. 164, 425 S.W.2d 597, 1968 Tenn. LEXIS 455 (1968).

21. —Judgment or Decree Not Final.

In a proper case errors complained of in a judgment not final in form or substance are subject to review by the appellate courts upon a petition for the writ of certiorari. Taylor v. Continental Tennessee Lines, Inc., 204 Tenn. 556, 322 S.W.2d 425, 1959 Tenn. LEXIS 310 (1959); Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965).

Trial court's improper denial of defendant's request for leave to file plea in abatement to sufficiency of summons was subject to review by Supreme Court upon petition for certiorari even though judgment was not final. Taylor v. Continental Tennessee Lines, Inc., 204 Tenn. 556, 322 S.W.2d 425, 1959 Tenn. LEXIS 310 (1959).

Writ of certiorari may be granted in a proper case although the decree is not final. Lutz v. John Bouchard & Sons Co., 575 S.W.2d 7, 1974 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1974).

22. —Review of Commission Findings.

Where petitions for writ of certiorari to review action of county beer board at intermediate stage of board's proceedings were presented to circuit judge, he had discretion to grant writ at that stage and to review board's record to see whether it was acting illegally. Bragg v. Boyd, 193 Tenn. 507, 246 S.W.2d 575, 1952 Tenn. LEXIS 317 (1952).

Where petition for revocation of tavern owner's license had not been determined finally by county beer board, it was proper for circuit judge to use common law writ of certiorari for a remand to have case completed before board and final order entered. Bragg v. Boyd, 193 Tenn. 507, 246 S.W.2d 575, 1952 Tenn. LEXIS 317 (1952).

Effect of 1951 amendment to § 27-9-111 is to require chancellor to review the evidence which has been introduced before the commission, and to determine by a preponderance of the evidence whether the commission has acted beyond its jurisdiction, arbitrarily, fraudulently, or illegally, as this is the long established limit of appropriate judicial review under the common law writ. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 195 Tenn. 593, 261 S.W.2d 233, 1953 Tenn. LEXIS 384 (1953).

Enabling statutes, T.C.A. § 13-7-201 et seq., did not prohibit city council from retaining the right of review of actions of the planning commission approving applicant's request for a use-on-review; city council's decision to deny use-on-review was not ultra vires, illegal, or in excess of its jurisdiction under T.C.A. § 27-8-101. Wadlyn Corp. v. City of Knoxville, 296 S.W.3d 536, 2008 Tenn. App. LEXIS 749 (Tenn. Ct. App. Dec. 23, 2008).

23. —Removal from Justice Court.

Superior court had the power to remove cause from justice court both before and after trial, but party seeking writ of certiorari had to show why he did not appeal to county court, and why he did not obtain certiorari from two justices. May v. Executors of Campbell, 1 Tenn. 61, 1804 Tenn. LEXIS 19 (1804).

Trial court did not abuse its discretion in granting certiorari and supersedeas as to suit brought in justice of peace court as result of traffic accident upon petition stating that person driving automobile was not agent of defendants and that automobile involved did not belong to defendants and showing due diligence by defendants in their attempt to furnish appeal bond within statutory time. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

24. —Suspension of Municipal Officer.

The Supreme Court and not the court of civil appeals, had jurisdiction to issue writs of certiorari and supersedeas to review an order suspending a municipal officer from office pending ouster proceedings. State ex rel. Timothy v. Howse, 132 Tenn. 452, 178 S.W. 1110, 1915 Tenn. LEXIS 33 (1915).

Action of mayor in removing city housing authority commissioners under provisions of § 13-20-411 involved the exercise of a judicial function rather than amounting to a mere ministerial act of administrative function and was subject to review by certiorari where no provision was made for an appeal. Mayor of Jackson v. Thomas, 44 Tenn. App. 176, 313 S.W.2d 468, 1957 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1957).

25. —Review of Legislative Action.

The case law of this state which has permitted court review of purely legislative action by means of the common law writ of certiorari is highly unusual and probably is incorrect; certainly the general rule is to the contrary. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

26. — —Mistaken Use of Certiorari.

Where a plaintiff mistakenly seeks judicial review of a zoning amendment through a writ of certiorari, his petition may be regarded as an application for a declaratory judgment. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

An action for declaratory judgment, as provided by title 29, ch. 14, rather than a petition for certiorari is the proper remedy to be employed by one who seeks to invalidate an ordinance, resolution or other legislative action of county, city or other municipal legislative authority enacting or amending zoning legislation; however, where the plaintiff mistakenly employs the remedy of certiorari the court may treat the action as one for declaratory judgment and proceed accordingly, rather than dismiss the action. Nance v. Council of Memphis, 672 S.W.2d 208, 1983 Tenn. App. LEXIS 686 (Tenn. Ct. App. 1983).

27. Procedure and Practice.

Notwithstanding the discretion of the supreme court in certain cases to entertain a petition for the common law writ of certiorari to review the action of the court of criminal appeals in granting or denying such a writ, the proper procedure is to petition the court of criminal appeals for the writ and, upon its denial, to petition the supreme court for the writ, assigning as error the action of the trial court, and reciting fully the fact of the filing of the former petition and the action taken thereon by the court of criminal appeals. Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978).

Where a business filed a petition for common-law writ of certiorari seeking judicial review of the authority of the metropolitan wastewater hearing authority to assess costs for replacing a damaged sewer line, the trial court exceeded the scope of review by improperly weighing the evidence rather than simply determining whether the record contained material evidence to support the authority's decision. Leonard Plating Co. v. Metro. Gov't of Nashville & Davidson County, 213 S.W.3d 898, 2006 Tenn. App. LEXIS 471 (Tenn. Ct. App. 2006), appeal denied,  Leonard Plating Co. v. Metro. Gov't, — S.W.3d —, 2006 Tenn. LEXIS 1219 (Tenn. 2006).

In a case in which a contractor's employee filed a petition for writ of certiorari seeking review of the Alarm Systems Contractors Board's decision denying his application for registration, the appellate court disagreed with the Board's contention that appellant's petition was insufficient to survive a motion to dismiss because it failed to state the nature of appellant's felony, a fact from which the appellate court could determine for itself whether the Board acted outside of its statutory authority. Tolleson v. Tenn. Dep't of Commerce & Ins., — S.W.3d —, 2015 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2015).

Chancery court erred in granting the parents'  petition for a writ of certiorari because the chancery court did not have subject matter jurisdiction to review a juvenile court's ex parte protective custody order where the chancery court was not a superior court to a juvenile court with regard to dependency and neglect proceedings and a writ of certiorari proceeding did not satisfy either of the types of cases for the chancery court's exercise of jurisdiction. In re Brody S., — S.W.3d —, 2016 Tenn. App. LEXIS 362 (Tenn. Ct. App. May 24, 2016).

28. —Allegations of Petition.

The petition for certiorari and supersedeas to annul the judgment or to supersede and quash the execution, and not for a new trial on the merits, must state all the defenses intended to be relied on, and must present the errors in the proceedings in the lower court of which the petitioner desires to take advantage, or they will be considered as waived or abandoned. No defense, including that of the statute of limitations, or other error will be noticed, unless set forth and pointed out in the petition, or in the amended petition when properly allowed. R. S. Hollins & Co. v. Johnson, 40 Tenn. 346, 1859 Tenn. LEXIS 94 (1859); Noel & Co. v. Scoby, 49 Tenn. 20, 1870 Tenn. LEXIS 183 (1870); Smith v. Brown, 3 Shan. 820 (1870); Lyles v. Cox, 78 Tenn. 738, 1882 Tenn. LEXIS 246 (1882).

A petition is insufficient which states legal conclusions, as that a municipal authority had assessed a valuation that was “fictitious, illegal, exorbitant and oppressive.” Carriger v. Morristown, 148 Tenn. 585, 256 S.W. 883, 1923 Tenn. LEXIS 45 (1923).

Petition for certiorari to real estate commission which does not allege that commission was acting illegally or in excess of its jurisdiction was insufficient to serve as a predicate for the issuance of a common law certiorari. Real Estate Com. v. McLemore, 202 Tenn. 540, 306 S.W.2d 683, 1957 Tenn. LEXIS 437 (1957).

Petition was insufficient where there was no allegation that plaintiff did anything that would have prevented defendant from appealing, or that defendant did not know that he was served with the warrant, nor was it denied that process was lawfully executed. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

The petitioner must set out the facts of his case and cannot rely upon the insertion of the general words of the statute in his petition. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

29. —Choosing Between Common Law and Statutory Writ.

Where petitioners were entitled to relief under either or both the common law writ under this section or the statutory writ under § 27-8-102 it was not error for the trial court to refuse to require petitioners to choose under which provision they intended to proceed. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

30. —Extension of Time for Filing.

It has been the invariable custom of the Supreme Court and the members thereof to grant applications for extension of time within which to file petitions for certiorari, upon a reasonable showing made by the applicant to justify delay, without notice being given to the adverse counsel. Woerner v. O'Neal Com. Co., 169 Tenn. 468, 89 S.W.2d 162, 1935 Tenn. LEXIS 71 (1936).

31. —Proof by Affidavits.

Where superior court is convinced by affidavit of moving party that writ of certiorari should be granted it should not consider counter affidavits opposing granting of writ. Beck v. Knabb, 1 Tenn. 55, 1804 Tenn. LEXIS 17 (1804).

32. Writ Denied.

Petitioner who failed to present any facts that would support a claim that the board of paroles acted illegally or fraudulently or exceeded its authority was not entitled to relief under the writ of certiorari. Fite v. State, 925 S.W.2d 543, 1996 Tenn. App. LEXIS 870 (Tenn. Ct. App. 1996).

Inmate's petition for writ of certiorari was properly dismissed where placement of inmate in administrative segregation did not require a signature from the warden and/or written notice to inmate, and did not violate his due process rights; there was good reason for the segregation, which was not punitive but necessary in order to combat his disruptive and dangerous propensities and to protect staff and other inmates. Settle v. Tenn. Dep't of Corr., 276 S.W.3d 420, 2008 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 27, 2008).

Defendant's petition for review of an alleged violation of implied consent laws could not be considered via writ of certiorari because none of the bases for permitting certiorari review in lieu of an ordinary appeal were present. State v. Smith, 278 S.W.3d 325, 2008 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 11, 2008).

Trial court did not abuse its discretion in denying a petition for a writ of certiorari because the city council applied the appropriate standard of review and a funeral home was entitled to a building permit as the addition of a crematory was an appropriate accessory use to the existing funeral home. Scott v. City of Knoxville, — S.W.3d —, 2015 Tenn. App. LEXIS 444 (Tenn. Ct. App. June 8, 2015).

Homeowners sought a writ of certiorari in lieu of appeal, but they failed to provide evidence that their appeal was defeated on any of the grounds described in case law; they attempted to justify their failure to appeal on their ignorance of appellate procedure and the fact that one homeowner did not attend the general sessions hearing, but as these excuses amounted to nothing more than inexcusable neglect, the circuit court did not err in denying their petition for writ of certiorari. Elswick v. Jackson, — S.W.3d —, 2015 Tenn. App. LEXIS 883 (Tenn. Ct. App. Oct. 29, 2015).

Pursuant to the local code, the zoning administrator was vested with authority to classify land which had not been defined in the code and explained the officer's decision to classify flex loans as cash advances in denying a building permit for a business offering flex loans to consumers. The decision by the board of zoning appeals, which affirmed the decision to classify flex loans as cash advances for the purposes contemplated by the code, was supported by the evidence and was not arbitrary or unreasonable. Brown v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2018 Tenn. App. LEXIS 25 (Tenn. Ct. App. Jan. 23, 2018).

Trial court properly dismissed an inmate's for a writ of certiorari because the evidence did not preponderate against its finding that a corporal was appointed as an alternate disciplinary hearing officer; nothing in the Tennessee Department of Correction (TDOC) Uniform Disciplinary Procedures provided a right to an inmate to make demand of proof establishing her appointment or required TDOC to provide the information. Howard v. Turney Ctr. Disciplinary Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 30, 2018).

Trial court properly dismissed an inmate's for a writ of certiorari because the disciplinary restraints imposed upon the inmate did not implicate a liberty interest protected by due process since they were not atypical in comparison to the ordinary incidents of prison life. Howard v. Turney Ctr. Disciplinary Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 30, 2018).

Trial court properly dismissed an inmate's for a writ of certiorari because the inmate was not substantially prejudiced when he was allowed only 21.5 hours following the notice of the charge against him instead of the mandated 24 hours; the inmate did not object to insufficient notice before the hearing officer or in his appeals to the warden and commissioner, and he was allowed to testify on his own behalf and was present during the testimony of the reporting officer. Howard v. Turney Ctr. Disciplinary Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 30, 2018).

Trial court properly dismissed an inmate's for a writ of certiorari because the protocol requirements of the Tennessee Department of Correction (TDOC) Uniform Disciplinary Procedures regarding confidential information had been fully complied with; although the hearing officer, through accident or oversight, mistakenly checked the wrong three boxes on a form, the clerical error did not prejudice the inmate in any way and did not provide him an avenue for relief. Howard v. Turney Ctr. Disciplinary Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 30, 2018).

Trial court properly dismissed an inmate's petition for a common law writ of certiorari challenging the actions of a prison grievance committee because the committee's actions were beyond the scope of review for a common writ of certiorari; the actions of a prison grievance committee were purely administrative, and the inmate attacked the intrinsic correctness of the committee's decision. Wilson v. Adcock, — S.W.3d —, 2018 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 26, 2018).

Chancery court did not err in denying a former police officer's petition for a writ of certiorari because the officer's failure to follow the directive of the city administrator to complete reports which were a known and integral part of her job, coupled with other instances in which she repeatedly failed to modify her behavior following discussions with those in the chain of command, were material evidence to support the disciplinary action of dismissal. Looper v. City of Algood, — S.W.3d —, 2018 Tenn. App. LEXIS 268 (Tenn. Ct. App. May 16, 2018).

33. Appeal from Refusal of Certiorari.

If the writ of certiorari be improperly refused, an appeal in the nature of a writ of error lies. Lawson v. Scott, 9 Tenn. 92, 1825 Tenn. LEXIS 12 (1825); Bob v. State, 10 Tenn. 173, 1826 Tenn. LEXIS 10 (1826).

Trial court did not err by denying the applicant's request for relief pursuant to a writ of certiorari because the court could not conclude that the Board lacked material evidence that the applicant engaged in deceit in an effort to procure his nursing license, given that the Board did not believe his allegations regarding his expunged criminal conviction. Butler v. Tenn. Bd. of Nursing, — S.W.3d —, 2016 Tenn. App. LEXIS 792 (Tenn. Ct. App. Oct. 25, 2016).

34. Criminal Cases.

Section 40-3403 (repealed) does not have the effect of preventing the state from presenting to the Supreme Court the question of whether trial court exceeded its jurisdiction or acted illegally in a criminal case. State v. Odom, 200 Tenn. 231, 292 S.W.2d 23, 1956 Tenn. LEXIS 400 (1956).

Where trial court reduced conviction of first degree murder in which jury fixed the sentence at 39 years to second degree murder and fixed the sentence at 10 to 20 years, the action of the trial court was illegal and the state was entitled to certiorari under this section. State v. Odom, 200 Tenn. 231, 292 S.W.2d 23, 1956 Tenn. LEXIS 400 (1956).

After review, the appellate court concluded that the common law writ or certiorari was proper in defendant's case, as the trial court's failure to comply with the requirement that the trial court shall consider the financial resources and future ability of defendant to pay or perform restitution as provided in T.C.A. § 40-35-304(d), constituted a plain and palpable abuse of discretion; moreover, no other plain, speedy, or adequate remedy was available to defendant in her case, and thus the appellate court treated defendant's appeal of the trial court's denial of her motion to modify restitution as that of a writ of certiorari. Lane v. State, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 18, 2007), rev'd, 254 S.W.3d 349, 2008 Tenn. LEXIS 365 (Tenn. May 20, 2008).

Defendant could not appeal as of right trial court's denial of her motion to modify a condition of probation, and the Tennessee court of criminal appeals erred in granting defendant common-law writ of certiorari and in holding that trial court's decision was a plain and palpable abuse of discretion; record did not reflect that trial court exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily in denying defendant's motion to modify. State v. Lane, 254 S.W.3d 349, 2008 Tenn. LEXIS 365 (Tenn. May 20, 2008).

Because an inmate was not entitled to multiple release eligibility dates and consideration for custodial parole, his petition alleging that the Tennessee Board of Probation and Parole and Board officials deprived him of the privilege to be heard for custodial parole failed to state a claim on which relief could be granted; therefore, the trial court properly granted the motions of the Board and officials to dismiss the inmate's petition for common law writ of certiorari pursuant to T.C.A. §§ 27-8-101 and 27-9-101. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

Trial court properly dismissed an inmate's petition under T.C.A. §§ 27-8-101 and 27-9-101 for common law writ of certiorari against the Tennessee Department of Correction's (TDOC) and TDOC officials because the inmate failed to seek a declaratory order from TDOC as required by the Uniform Administrative Procedures Act, T.C.A. § 4-5-225(b); therefore, the trial court lacked subject matter jurisdiction of the claims against TDOC and TDOC officials. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

Because the trial court acted without legal authority, and there was no other plain, speedy, or adequate remedy for the State, the court of criminal appeals treated the State's appeal as that of a writ of certiorari. State v. Morgan, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 746 (Tenn. Crim. App. Sept. 29, 2016).

Although the State of Tennessee could not appeal its claim that the trial court erred by applying the amended version of a sentencing statute, appellate jurisdiction existed over the claim because, once defendant filed a notice of appeal, the court acquired jurisdiction of the entire case and any properly-preserved, cognizable claims. Because the determination of the appropriate version of the statute to be applied qualified as a question of law, it was permitted to be raised by either party, regardless of which party initiated the appeal. State v. Keese, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2018).

Although no right of direct appeal lied for the State of Tennessee, because a trial court's application of an amended sentencing statute to defendant's case and the resulting modification of defendant's sentence exceeded the court's authority, the appellate court elected to treat the State of Tennessee's improperly-filed appeal as of right as a petition for the common law writ of certiorari and reviewed the matter. State v. Tolle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. Mar. 19, 2018).

Court of appeals declined to treat the State's appeal as a common law writ of certiorari because the trial court did not exceed its jurisdiction or act illegally in sentencing defendant, the a sentencing hearing was held consistent with the laws and principles of sentencing, and both parties participated meaningfully in the hearing; the trial court's decision to sentence defendant pursuant to the amended statutory grading of theft statute was not a plain and palpable abuse of discretion. State v. Cross, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. May 3, 2018).

NOTES TO DECISIONS

1. Jurisdiction.

The remedy afforded by this section is statutory and is not to be confused with the common law remedy afforded by § 27-8-101. McGee v. State, 207 Tenn. 431, 340 S.W.2d 904, 1960 Tenn. LEXIS 476 (1960); Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918, 1960 Tenn. LEXIS 482 (1960).

This section provides for the so-called statutory writ of certiorari. Fairhaven Corp. v. Tennessee Health Facilities Com., 566 S.W.2d 885, 1976 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1976).

Although the general rule is that the common law writ of certiorari should be restricted to those cases where an inferior tribunal has exceeded the jurisdiction conferred or is acting illegally and there is no other plain, speedy or adequate remedy, and that as a general proposition it does not lie to inquire into the correctness of the judgment where the court has jurisdiction, there are exceptions to the general rule which include, but are not restricted to, the following: (1) where the ruling of the court below represents a fundamental illegality; (2) where the ruling constitutes a failure to proceed according to the essential requirements of the law; (3) where the ruling is tantamount to the denial to either party of a day in court; (4) where the action of the trial judge was without legal authority; (5) where the action of the trial judge constituted a plain and palpable abuse of discretion; (6) where either party has lost a right or interest that may never be recaptured. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

This section provides for the so-called statutory writ of certiorari while § 27-8-101 provides for the so-called common-law writ. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

2. —Finality of Judgment.

Review of interlocutory order of circuit court could not be had under grounds (3) and (5) of this section where there was no final judgment. Ellenburg v. Hartford Acci. & Indem. Co., 56 Tenn. App. 272, 406 S.W.2d 66, 1966 Tenn. App. LEXIS 223 (Tenn. Ct. App. 1966).

3. —Circuit Courts.

Circuit courts are courts of general jurisdiction, and have appellate jurisdiction of all suits and actions, of whatsoever nature or description, instituted before any inferior jurisdiction, whether brought before them by appeal, certiorari, or in any other manner prescribed by law. Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, 1904 Tenn. LEXIS 56 (1904).

4. —Not Available as of Right.

The remedy of certiorari is not available as of right, but is granted under unusual or extraordinary circumstances. Clark v. Metropolitan Government of Nashville & Davidson County, 827 S.W.2d 312, 1991 Tenn. App. LEXIS 815 (Tenn. Ct. App. 1991).

5. —Distress Warrant for Taxes.

Where the object of the certiorari is to revise the judicial act of the official who issued the distress warrant for taxes, the jurisdiction is in the circuit court of the county in which the act was done, but if the distress warrant issued to another county, be void upon its face, it may be quashed by the circuit court of the county to which it was issued. Saunders v. Russell, 78 Tenn. 293, 1882 Tenn. LEXIS 179 (1882).

6. Diminution of Record.

7. —Suggestion of Defects.

The writ of certiorari is an auxiliary writ used to bring up from an inferior to the Supreme or superior court a more perfect record of a cause, on suggestion of defects or omissions, technically styled a suggestion of diminution of the record, on sufficient cause shown by affidavit or otherwise; and the writ issues from the office of the clerk of the Supreme or superior court, directed to the keeper of the record below, requiring and commanding him to make out and certify and send up a more perfect or complete record or transcript. Durham v. United States, 5 Tenn. 69, 1817 Tenn. LEXIS 51 (1817); Western Union Tel. Co. v. Ordway, Gordon & McGuire, 76 Tenn. 558, 1881 Tenn. LEXIS 45 (1881).

8. —Court's Own Motion.

The Supreme Court may, without a suggestion of diminution, send a certiorari for a part of the record which appears to be omitted. Newport v. Lessee of Rowen, 5 Tenn. 195, 1817 Tenn. LEXIS 92 (1817).

9. —Award After Judgment.

The certiorari, on suggestion of diminution of record, may be awarded after judgment entered, where supported by copy of the record showing the diminution. Trott v. West, Moss & Co., 19 Tenn. 163, 1838 Tenn. LEXIS 40 (1838); McGhee v. Grady, 80 Tenn. 89, 1883 Tenn. LEXIS 143 (1883).

10. —Lost Transcript.

If the transcript of the record, properly filed in the Supreme Court, has been lost, it may be supplied by the parties, upon an order for that purpose, or by consent; but the Supreme Court has no authority, under this statute, to compel the clerk of the inferior court to make out a new transcript and file the same, without compensation or his fees therefor being paid, and the clerk will not be compelled to do so. Western Union Tel. Co. v. Ordway, Gordon & McGuire, 76 Tenn. 558, 1881 Tenn. LEXIS 45 (1881).

11. No Appeal Given.

12. —Denial of Bail.

Since no specific statutory method is provided to review action of court in denying bail in capital cases, the statutory writ of certiorari as a substitute for appeal can be invoked. State ex rel. Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437, 1969 Tenn. LEXIS 449 (1969).

13. —Relation of Appeal to Certiorari.

An appeal is a peculiar remedy, and at the same time the usual one; and it can never be said that simply because an appeal cannot be taken, a certiorari, in substance or effect an appeal, may be granted. The two remedies are quite different. City of Johnson City v. Unaka Milling Co., 8 Tenn. Civ. App. 606 (1918).

14. —Decree Not Final.

The supervisory power of the court may be exercised, in a proper case, through the writ of certiorari before a final decree has been passed, provided that the lower court or the inferior tribunal has acted without jurisdiction, or in excess of jurisdiction or illegally. State ex rel. McMorrough v. Hunt, 137 Tenn. 243, 192 S.W. 931, 1916 Tenn. LEXIS 75 (1917).

Where the decretal order is not final in character so as to allow of appeal, certiorari lies. Hill State Bank & Trust Co. v. Chew, 167 Tenn. 71, 66 S.W.2d 989, 1933 Tenn. LEXIS 5 (1934).

Writ of certiorari may be granted in a proper case although the decree is not final. Lutz v. John Bouchard & Sons Co., 575 S.W.2d 7, 1974 Tenn. App. LEXIS 148 (Tenn. Ct. App. 1974).

15. —Board of Tax Equalization — Review.

Proceedings of county board of equalization of the assessment of property for taxes cannot be reviewed by a writ of certiorari, where the board has not, with reference to the assessment, exceeded its jurisdiction or acted illegally within the meaning of the statute allowing certiorari “where no appeal is given.” Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S.W. 414, 1889 Tenn. LEXIS 28, 6 L.R.A. 207 (1889).

16. —Void City Distress Warrant — Removal.

A distress warrant issued by the recorder of a municipal corporation to collect a privilege tax, running in the name of the corporation, is void, and the writ of certiorari is the proper remedy to remove the warrant, and the proceedings under it, into the circuit court. Mayor & Aldermen v. Pearl, 30 Tenn. 249, 1850 Tenn. LEXIS 104 (1850); Spears v. Loague, 46 Tenn. 420, 1869 Tenn. LEXIS 76 (1869); Saunders v. Russell, 78 Tenn. 293, 1882 Tenn. LEXIS 179 (1882).

17. —City Council's Removal of Officer — Review.

The circuit court has the power, in the absence of any statutory right of appeal, to compel by certiorari, upon petition showing good cause, the production by the city council of the record of its proceedings, removing one of its officers, and to determine thereon whether that body has proceeded illegally, and for sufficient cause appearing therein, to quash their judgment of removal. Hayden v. City Council of Memphis, 100 Tenn. 582, 47 S.W. 182, 1898 Tenn. LEXIS 19 (1898).

18. —Municipal Officer Failing to Perform Duty.

Since there is no right of appeal from action of city clerk in refusing to certify petitions for recall to election commissioners, writ of certiorari would be issued under this section as a substitute for appeal and petitioners were entitled to a hearing de novo. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

19. —County Trustee Required to Give New Bond.

Certiorari does not lie from order of circuit judge in requiring county trustee to give a new bond, where the proceeding is merely erroneous, but if the proceeding be such a departure from the provisions of the statute as to render it void, the remedy is by certiorari. An appeal or writ of error does not lie in such case. In re Knight, 71 Tenn. 401, 1879 Tenn. LEXIS 97 (1879).

20. —County Court's Judgment in Partition Cases.

Writs of certiorari and supersedeas would not lie from a judgment of the county court, upon notes given for the purchase of land sold for partition, in the place of an appeal, because the jurisdiction of the county court in such cases was concurrent with the chancery and circuit courts, and an appeal lies from it in such cases. A writ of error, or a writ of error coram nobis, would, perhaps, be the proper remedy, in the absence of an appeal. Swafford v. Howard, 67 Tenn. 326, 1874 Tenn. LEXIS 383 (1874).

21. —Justice's Judgment Against Prosecutor.

Certiorari was proper method as to costs taxed against prosecutor by the justice, and to remove the judgment of the justice into the circuit court for revision. State v. Green, 39 Tenn. 356, 1859 Tenn. LEXIS 224 (1859).

22. —Paving Assessment Review.

A petition for writ of certiorari for review of assessment of paving purposes was insufficient to give circuit court jurisdiction, in the absence of allegations that the defendant, improvement commissioners, exceeded its jurisdiction or in any manner violated the statute. Carriger v. Morristown, 148 Tenn. 585, 256 S.W. 883, 1923 Tenn. LEXIS 45 (1923).

23. Substitute for Appeal.

24. —Jurisdiction of Writ.

Where the certiorari is used as a substitute for an appeal, to the end that another trial may be had upon the merits, the jurisdiction belongs exclusively to the circuit court of the county in which the justice's (now general sessions judge's) judgment was rendered. Rogers v. Miller, 31 Tenn. 22, 1851 Tenn. LEXIS 6 (1851).

25. —Time for Filing Petition.

The writ as substitute for appeal must be applied for before or during the next regular term of the circuit court to which appeal would have removed it, unless sufficient reason for delay is set out in petition. Nashville v. Mason, 11 Tenn. App. 344, — S.W.2d —, 1930 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1930).

26. —Single Object of Writ.

The petition must be either for a certiorari instead of an appeal, for the purpose of obtaining a new trial on the merits, or for an audita querela to quash the execution. It cannot stand good for both. Boyers v. Webb, 69 Tenn. 696, 1878 Tenn. LEXIS 161 (1878).

27. —Adequacy of Relief by Appeal.

The rule that appeal or writ of error existing bars certiorari is subject to the qualification that such other means of redress, in order to form a bar, should be adequate to meet the necessity of the case. Conners v. Knoxville, 136 Tenn. 428, 189 S.W. 870, 1916 Tenn. LEXIS 147 (1916).

Where the action of the trial court has effectively ended the prosecution of a case and leaves the state with no other plan, speedy or adequate remedy, this is tantamount to the denial to the state of its day in court and results in the loss of an interest not subject to recapture; in such a case the state may properly seek review of the trial court's action by means of the common law writ of certiorari. State v. Pigford, 572 S.W.2d 921, 1978 Tenn. LEXIS 664 (Tenn. 1978).

28. —Grounds for Certiorari in Lieu of Appeal.

The writ of certiorari in lieu of an appeal ought to be granted only where the petition shows that injustice has been done the petitioner, and a reasonable excuse is offered for not having appealed, as where the appeal has been defeated or prevented. Garrett v. Perryman, 2 Tenn. 108, 1808 Tenn. LEXIS 4 (1808); Henderson v. Lackey, 2 Tenn. 110, 1808 Tenn. LEXIS 6 (1808); Perkins v. Hadley, 5 Tenn. 143, 1817 Tenn. LEXIS 76 (1817); Arnold v. Embree, 7 Tenn. 133, 7 Tenn. 134, 1823 Tenn. LEXIS 15 (1823); McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852); Jones Motor Co. v. Carr, 10 Tenn. App. 179, 1929 Tenn. App. LEXIS 20 (1929).

Certiorari instead of appeal lies where a party has been deprived of the appeal without fault on his part, and where an appeal lies under the law. Roberts v. Cantrell, 4 Tenn. 219, 1817 Tenn. LEXIS 13 (1817); Durham v. United States, 5 Tenn. 69, 1817 Tenn. LEXIS 51 (1817); Rogers v. Ferrell, 18 Tenn. 254, 1837 Tenn. LEXIS 15 (1837).

By the blameless misfortune of the petitioner. Roberts v. Cantrell, 4 Tenn. 219, 1817 Tenn. LEXIS 13 (1817); Napier v. Person, 15 Tenn. 299, 15 Tenn. 300, 1835 Tenn. LEXIS 2 (1835); Belcher v. Belcher, 18 Tenn. 121, 1836 Tenn. LEXIS 108 (1836); Hale v. Landrum, 21 Tenn. 32, 1840 Tenn. LEXIS 21 (1840); Adair v. Davis, 22 Tenn. 137, 1842 Tenn. LEXIS 46 (1842); Angelly v. Donoho, 22 Tenn. 145, 1842 Tenn. LEXIS 49 (1842); McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852); McCormack v. Murfree, 34 Tenn. 46, 1854 Tenn. LEXIS 11 (1854); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871); Snapp v. Thomas, 73 Tenn. 503, 1880 Tenn. LEXIS 172 (1880).

By the oppressive or erroneous act and conduct of the court or justice. Arnold v. Embree, 7 Tenn. 133, 7 Tenn. 134, 1823 Tenn. LEXIS 15 (1823); McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852); Copeland v. Cox, 52 Tenn. 171, 1871 Tenn. LEXIS 247 (1871).

By the willful or negligent act of the clerk. Kearney v. Jackson & Smith, 9 Tenn. 293, 9 Tenn. 294, 1830 Tenn. LEXIS 25 (1830).

By fraud or inevitable accident. Belcher v. Belcher, 18 Tenn. 121, 1836 Tenn. LEXIS 108 (1836); McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852).

It is a sufficient ground that the petitioner remained at the place of trial till late in the evening and then went home, and after sundown the warrant was returned and judgment was rendered, of which he was not informed till after the time for appealing had expired. Angelly v. Donoho, 22 Tenn. 145, 1842 Tenn. LEXIS 49 (1842).

The justice's (now general sessions judge's) refusal to accept appeal bond within the prescribed time, with a promise to accept the bond on the next business day, and his refusal then because the time had expired, is ground. Smith v. White, 24 Tenn. 46, 1844 Tenn. LEXIS 11 (1844); Mallett v. Hutchinson, 38 Tenn. 558, 1858 Tenn. LEXIS 226 (1858).

By the fraudulent, erroneous, or misleading conduct of the justice who tried the case, and the ignorance of the party. Smith v. White, 24 Tenn. 46, 1844 Tenn. LEXIS 11 (1844); Allen v. Primm, 32 Tenn. 337, 1852 Tenn. LEXIS 77 (1852); Evans v. Evans, 44 Tenn. 600, 1867 Tenn. LEXIS 77 (1867); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871).

By the wrongful neglect or conduct of the justice. Spivy v. Latham, 27 Tenn. 703, 1848 Tenn. LEXIS 25 (1848).

By the contrivance or procurement of the adverse party. McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852); Copeland v. Cox, 52 Tenn. 171, 1871 Tenn. LEXIS 247 (1871).

Where notes were placed in the hands of a constable and were sued on, and no defense was known or apprehended, and the plaintiff was sick and failed to send an agent, the right to the certiorari instead of an appeal was not forfeited. McCormack v. Murfree, 34 Tenn. 46, 1854 Tenn. LEXIS 11 (1854).

Where the justice (now general sessions judge) who rendered the judgment was absent from his county during the time for the appeal, and the petitioner went to his office during that time to take an appeal, such absence was a sufficient ground. King v. Williams, 54 Tenn. 303, 1872 Tenn. LEXIS 51 (1872).

It is a ground for certiorari instead of an appeal where the plaintiff, residing in one county, sent to his agent in another county, in which the defendant resided, the written contract evidencing the debt to be sued on, the plaintiff anticipating no defense because the defendant had paid half the debt, and the agent was unable to procure sureties for the appeal from the judgment so unexpectedly rendered against the plaintiff, within the two days allowed by law, the plaintiff having not heard of the judgment until it was too late to furnish sureties for the appeal. Snapp v. Thomas, 73 Tenn. 503, 1880 Tenn. LEXIS 172 (1880).

Action of mayor in removing city housing authority commissioners under provisions of § 13-20-411 involved exercise of a judicial function rather than amounting to a mere ministerial act or administrative function and was subject to review by certiorari where no provision was made for an appeal. Mayor of Jackson v. Thomas, 44 Tenn. App. 176, 313 S.W.2d 468, 1957 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1957).

Certiorari is available in the Court of Appeals where a trial court has denied an appeal to one entitled to appeal. Cummings v. Patterson, 54 Tenn. App. 75, 388 S.W.2d 157, 1964 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1964).

Where the state's appeal to the court of criminal appeals was dismissed on the grounds that the state had no right of appeal from the action of a trial judge in suppressing evidence, even though the order of suppression presented difficulties in the way of proceeding further with the prosecution of the case, and was plainly erroneous, the state's only avenue of relief against that suppression order was by the common law writ of certiorari. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

29. —Petition — Requisites.

Some of the requisite statements in a petition for certiorari or certiorari and supersedeas instead of an appeal from a justice (now general sessions judge). Perkins v. Hadley, 5 Tenn. 143, 1817 Tenn. LEXIS 76 (1817); Marshal v. Hill, 16 Tenn. 101, 1835 Tenn. LEXIS 52 (1835); Welsh v. Harman, 16 Tenn. 103, 1835 Tenn. LEXIS 53 (1835); Kennedy v. Farnsworth, 22 Tenn. 242, 1842 Tenn. LEXIS 80 (1842); O'Sullivan v. Larry, 39 Tenn. 54, 1858 Tenn. LEXIS 251 (1858); Knox v. Carter, 58 Tenn. 12, 1872 Tenn. LEXIS 219 (1872); Lindsley v. Thompson, 1 Cooper's Tenn. Ch. 272 (1873); Scovel v. Mayor of Nashville, 2 Shan. 260 (1877); Boyers v. Webb, 69 Tenn. 696, 1878 Tenn. LEXIS 161 (1878); Parkes v. Clift, 77 Tenn. 524, 1882 Tenn. LEXIS 95 (1882); Lyles v. Cox, 78 Tenn. 738, 1882 Tenn. LEXIS 246 (1882); Donaldson v. Nealis, 108 Tenn. 638, 69 S.W. 732, 1902 Tenn. LEXIS 9 (1902); Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, 1904 Tenn. LEXIS 56 (1904); Jones Motor Co. v. Carr, 10 Tenn. App. 179, 1929 Tenn. App. LEXIS 20 (1929); Nashville v. Mason, 11 Tenn. App. 344, — S.W.2d —, 1930 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1930).

The petition for certiorari instead of an appeal must show merits and a good cause for not appealing. Hale v. Landrum, 21 Tenn. 32, 1840 Tenn. LEXIS 21 (1840); McCormack v. Murfree, 34 Tenn. 46, 1854 Tenn. LEXIS 11 (1854); O'Sullivan v. Larry, 39 Tenn. 54, 1858 Tenn. LEXIS 251 (1858); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871); Ammons v. Coker, 124 Tenn. 676, 139 S.W. 732, 1911 Tenn. LEXIS 71 (1911).

In a petition for a certiorari instead of an appeal, certainty to “a common intent” in the averments is sufficient and all that is required. Dick & Co. v. Powell, 32 Tenn. 632, 1853 Tenn. LEXIS 97 (1853); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871); Harris v. Gleghorn, 80 Tenn. 381, 1883 Tenn. LEXIS 184 (1883).

The petition fails to show sufficient grounds therefor, unless the petitioner has been deprived of his appeal by inevitable accident, by the wrongful act of the justice or adverse party, or by his own blameless misfortune, no matter how meritorious his case may be, and a petition failing to show such grounds will be dismissed. Copeland v. Cox, 52 Tenn. 171, 1871 Tenn. LEXIS 247 (1871); Cox v. Kent, 68 Tenn. 492, 1876 Tenn. LEXIS 35 (1876).

A petition that merely recited a history of the case, the amount sued for on sworn account, and the amount of the judgment entered by the trial justice court, and asserted as grounds for certiorari the conclusory statement that “mutual mistakes have been made” was insufficient to warrant issuance of a writ. Jasper Engine & Transmission Exch. v. Mills, 911 S.W.2d 719, 1995 Tenn. App. LEXIS 254 (Tenn. Ct. App. 1995), application denied, — S.W.2d —, 1995 Tenn. LEXIS 488 (Tenn. Aug. 28, 1995).

30. — —Illustrations.

A petition by a surety on a note that the judgment is wholly unjust, and that he is informed and believes that he can show on another trial that the note sued on had been paid in whole or in part before the suit was brought, is a statement of “good and sufficient cause.” Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871).

A petition for writs of certiorari and supersedeas in a replevin suit, stating that the property of the petitioner (the plaintiff in the replevin suit) was seized by one not an officer, but falsely claiming to be such, and to satisfy a claim against another person, shows merits. Melton v. Edwards, 53 Tenn. 250, 1871 Tenn. LEXIS 352 (1871).

31. —Amendment of Petition.

Amendment of petition for certiorari may be allowed in a proper case in the discretion of the court, but like amendments to answers in chancery, the amendment should be very guardedly allowed; but having been granted, and the amendment showing merits, it is error to dismiss the petition upon a motion made previous to the grant of leave to amend. Steel v. West, 26 Tenn. 109, 1846 Tenn. LEXIS 70 (1846); R. S. Hollins & Co. v. Johnson, 40 Tenn. 346, 1859 Tenn. LEXIS 94 (1859); Snapp v. Thomas, 73 Tenn. 503, 1880 Tenn. LEXIS 172 (1880).

32. —Motion to Dismiss Petition.

On motion to dismiss the petition, the petition must be taken as true unless negatived by the papers constituting the record in the cause, which may be examined for that purpose. Edde v. Cowan, 33 Tenn. 290, 1853 Tenn. LEXIS 44 (1853); Nicks v. Johnson, 35 Tenn. 326, 1855 Tenn. LEXIS 125 (1855); Finley v. King, 38 Tenn. 123, 1858 Tenn. LEXIS 136 (1858); Harris v. Gleghorn, 80 Tenn. 381, 1883 Tenn. LEXIS 184 (1883).

33. —Insufficient Grounds for Certiorari in Lieu of Appeal.

Failure to appeal for absence of petitioner, at the trial, unless his absence was occasioned by the opposite party, by the court, or the officers of the court. Stuart v. Hall, 2 Tenn. 178, 2 Tenn. 179, 1812 Tenn. LEXIS 5 (1812), overruled, Studdurt v. Fowlkes, 32 Tenn. 537, 1852 Tenn. LEXIS 112 (1852).

Plaintiff's absence from trial, and the allowance of improper setoff, of which allowance he had no notice. Porter v. Wheaton, 13 Tenn. 108, 1833 Tenn. LEXIS 116 (1833); Moss v. Collins, 22 Tenn. 148, 1842 Tenn. LEXIS 51 (1842).

Inability to give appeal bond at the time judgment was rendered. Adair v. Davis, 22 Tenn. 137, 1842 Tenn. LEXIS 46 (1842).

Forgery suspected or known too late to appeal. McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852).

Trial in wrong civil district, without stating the facts enabling the court to see that the case was tried in the wrong district. O'Sullivan v. Larry, 39 Tenn. 54, 1858 Tenn. LEXIS 251 (1858).

General statement that judgment is too large, where the whole judgment is not complained of, but only a part of it. The petition should show in what the error consists, and the amount of the same. O'Sullivan v. Larry, 39 Tenn. 54, 1858 Tenn. LEXIS 251 (1858); Scovel v. Mayor of Nashville, 2 Shan. 260 (1877).

Want of knowledge of facts set up in the petition, alleged to have been known by both the petitioner and the plaintiff, but that the petitioner did not know that he could prove the plaintiff's knowledge, or he would have appealed, but that he can now prove the fact. Brinkley v. Burney, 45 Tenn. 101, 1867 Tenn. LEXIS 100 (1867).

Execution first reliable knowledge that petitioner had of the judgment. Gillam v. Looney, 48 Tenn. 319, 1870 Tenn. LEXIS 57 (1870).

General understanding as to postponement, where the petitioner had the same question pending in the circuit court, and understood that the justice (now general sessions judge) would postpone his judgment until that question was decided, the certiorari being applied for two years after the judgment, and several months after the decision of the circuit court case. Gillam v. Looney, 48 Tenn. 319, 1870 Tenn. LEXIS 57 (1870); McDowell, McGaughy & Co. v. Keller, 48 Tenn. 449, 1870 Tenn. LEXIS 88 (1870); Greer v. Chickasaw Land Co., 107 Tenn. 46, 64 S.W. 12, 1901 Tenn. LEXIS 57 (1901).

No recollection of service by the petitioner, and his complete surprise when the execution issued, with his statement that he would have seen to his interest long since but for his want of knowledge of the existence of liability, and that he never was cited to trial as he now recollects, where the warrant was returned executed. Smith v. Brown, 3 Shan. 820 (1870); Greer v. Chickasaw Land Co., 107 Tenn. 46, 64 S.W. 12, 1901 Tenn. LEXIS 57 (1901).

General statements of petitioner's belief, on information, that the person serving the warrant was not an officer; that the note sued on was a forgery; that the petitioner lived in another county, and was hurrying home to a sick family when the warrant was served on him, and that it was impossible for him to return in time to appeal, and that neither party lived in the county where the suit was brought. Copeland v. Cox, 52 Tenn. 171, 1871 Tenn. LEXIS 247 (1871).

The return of an officer cannot be disputed and given as an excuse for not appealing in time. Gardner v. Barger, 51 Tenn. 668, 1871 Tenn. LEXIS 220 (1871).

While the officer's return cannot, in a subsequent proceeding by certiorari, be contradicted by evidence dehors the record in the case in which the return was made, it may nevertheless be discredited by evidence gathered from the papers in the case. Wilson v. Moss, 54 Tenn. 417, 1872 Tenn. LEXIS 67 (1872); Home Ins. Co. v. Webb, 106 Tenn. 191, 61 S.W. 79, 1900 Tenn. LEXIS 150 (1900).

Petitioner's misunderstanding of time of trial, through the statement of the officer as to the time of trial, without more. Cox v. Kent, 68 Tenn. 492, 1876 Tenn. LEXIS 35 (1876).

Stockholders were not entitled to have action of commissioner of insurance and banking (now commissioner of commerce and insurance) in approving merger of insurance companies reviewed by statutory writ of certiorari as such approval was not a final determination of right to merge and stockholders had right to bring suit to challenge validity of merger. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965).

Homeowners sought a writ of certiorari in lieu of appeal, but they failed to provide evidence that their appeal was defeated on any of the grounds described in case law; they attempted to justify their failure to appeal on their ignorance of appellate procedure and the fact that one homeowner did not attend the general sessions hearing, but as these excuses amounted to nothing more than inexcusable neglect, the circuit court did not err in denying their petition for writ of certiorari. Elswick v. Jackson, — S.W.3d —, 2015 Tenn. App. LEXIS 883 (Tenn. Ct. App. Oct. 29, 2015).

34. —Negligence of Petitioner — Effect on Rights.

The party's own negligence is no ground for the writ of certiorari instead of an appeal, but such negligence will deprive him of the right to the writ. Porter v. Wheaton, 13 Tenn. 108, 1833 Tenn. LEXIS 116 (1833); Adair v. Davis, 22 Tenn. 137, 1842 Tenn. LEXIS 46 (1842); Moss v. Collins, 22 Tenn. 148, 1842 Tenn. LEXIS 51 (1842); McMurry v. Milan, 32 Tenn. 176, 1852 Tenn. LEXIS 45 (1852); Brinkley v. Burney, 45 Tenn. 101, 1867 Tenn. LEXIS 100 (1867); J.H. Crouch & Co. v. Martin, 36 Tenn. 569, 1857 Tenn. LEXIS 57 (1867); Gillam v. Looney, 48 Tenn. 319, 1870 Tenn. LEXIS 57 (1870); McDowell, McGaughy & Co. v. Keller, 48 Tenn. 449, 1870 Tenn. LEXIS 88 (1870).

Where the petition for the certiorari is dismissed as insufficient, the petitioner cannot resort to the writ of error coram nobis or any other law proceeding to avail himself of any errors of which he might have had the benefit upon his petition for certiorari, but of which he was deprived by his mere negligence. In a proper case, he might have relief in chancery. Welsh v. Harman, 16 Tenn. 103, 1835 Tenn. LEXIS 53 (1835); Lindsley v. Thompson, 1 Cooper's Tenn. Ch. 272 (1873).

Neglect on the part of the petitioner is not a ground to grant writs of certiorari and supersedeas. General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489, 1984 Tenn. App. LEXIS 2904 (Tenn. Ct. App. 1984).

35. Audita Querela Proceedings.

An audita querela is where a defendant against whom a judgment is recovered and, who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter in discharge which has happened since the judgment, as where the plaintiff has given him a general release or where the defendant has paid the debt to the plaintiff without entering satisfaction on the record. Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 1972 Tenn. LEXIS 346 (Tenn. 1972).

Although petitioner, who sought relief for his conviction for first degree murder and his resulting death sentence, asserted that the trial court erred in denying his petition for a writ of audita querela, the writ was obsolete. Dellinger v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Aug. 18, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 334 (Tenn. May 6, 2016).

36. —Jurisdiction of Writ.

The circuit court and not two justices of the peace (now general sessions judges) under § 27-8-105 can grant writs of certiorari and supersedeas in the nature of an audita querela. Rogers v. Ferrell, 18 Tenn. 254, 1837 Tenn. LEXIS 15 (1837).

Where certiorari is used instead of the audita querela to quash an execution upon a matter of discharge subsequent to the judgment, or because the execution is void upon its face, the jurisdiction belongs to the circuit court of the county to which the certified execution was sent, and in which the execution issued upon such certified execution. Rogers v. Miller, 31 Tenn. 22, 1851 Tenn. LEXIS 6 (1851); Saunders v. Russell, 78 Tenn. 293, 1882 Tenn. LEXIS 179 (1882).

37. —Newly Arisen Matter.

A matter that has not arisen since the rendition of the judgment against which relief is sought is not a proper matter to be litigated upon a writ of audita querela or or certiorari in the nature of writ of audita querela. Baker v. Penecost, 171 Tenn. 529, 106 S.W.2d 220, 1937 Tenn. LEXIS 133 (1937).

38. —Averments in Writ.

In a petition to quash an execution because the judgment has been discharged, certainty to “a common intent” in the averments is sufficient and all that is required. Dick & Co. v. Powell, 32 Tenn. 632, 1853 Tenn. LEXIS 97 (1853); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871).

Upon an allegation in a petition for certiorari and supersedeas that petitioner is informed and believes that a large payment has been made on the judgment, for which no credit had been given, the petition should not be dismissed without giving an opportunity to establish the fact alleged. Colley v. Pillow, 1 Shan. 621 (1876).

39. —Single Object of Writ Essential.

The petition must be either for a certiorari instead of an appeal, for the purpose of obtaining a new trial on the merits, or for an audita querela to quash the execution. It cannot stand good for both. Boyers v. Webb, 69 Tenn. 696, 1878 Tenn. LEXIS 161 (1878).

40. —Purpose of Writ — Examples.

Office of certiorari and supersedeas, when used instead of the obsolete writ of audita querela, is to afford relief in relation to some matter of discharge, as release, payment, or discharge by bankruptcy or the statute of limitations, arising subsequent to the judgment. Linebaugh v. Rinker, 7 Tenn. 362, 1824 Tenn. LEXIS 12 (1824); Young v. Read, 11 Tenn. 296, 11 Tenn. 297, 1832 Tenn. LEXIS 45 (1832); Barnes v. Robinson, 12 Tenn. 186, 1833 Tenn. LEXIS 48 (1833); Gunn v. Benson, Hunt & Co., 13 Tenn. 220, 13 Tenn. 221, 1833 Tenn. LEXIS 144 (1833); Rogers v. Ferrell, 18 Tenn. 254, 1837 Tenn. LEXIS 15 (1837); Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844); Marsh v. Haywood, 25 Tenn. 210, 1845 Tenn. LEXIS 63 (1845); Baldwin v. Merrill, 27 Tenn. 132, 1847 Tenn. LEXIS 59 (1847); Jones v. Williams, 32 Tenn. 105, 1852 Tenn. LEXIS 27 (1852); Dick & Co. v. Powell, 32 Tenn. 632, 1853 Tenn. LEXIS 97 (1853); Edde v. Cowan, 33 Tenn. 290, 1853 Tenn. LEXIS 44 (1853); McDowell v. Turney, 37 Tenn. 225, 1857 Tenn. LEXIS 112 (1857); R. S. Hollins & Co. v. Johnson, 40 Tenn. 346, 1859 Tenn. LEXIS 94 (1859); Wilson v. Lowe, 47 Tenn. 153, 1869 Tenn. LEXIS 25 (1869); Kelley v. Story, 53 Tenn. 202, 1871 Tenn. LEXIS 345 (Tenn. Oct. 4, 1871); McGrew v. Reasons, 71 Tenn. 485, 1879 Tenn. LEXIS 103 (1879).

By a surety on a forfeited delivery bond to test his liability. Atkinson v. Rhea, 26 Tenn. 59, 1846 Tenn. LEXIS 56 (1846).

To quash a levy on property exempt from execution. Jones v. Williams, 32 Tenn. 105, 1852 Tenn. LEXIS 27 (1852); Denny v. White, 42 Tenn. 283, 1865 Tenn. LEXIS 59 (1865).

By a bankrupt to quash an execution on a judgment, from the payment of which he had been discharged. Dick & Co. v. Powell, 32 Tenn. 632, 1853 Tenn. LEXIS 97 (1853).

Where an execution has been levied upon a sufficiency of the principal's goods to satisfy the debt and costs, the levy is of itself a satisfaction of the execution, so far as the surety or stayor is concerned, and if such levy be abandoned and the goods of the surety or stayor be levied upon, the execution and levy will be quashed, and the goods discharged, upon writs of certiorari and supersedeas; and the suretyship may be shown by proof. Finley v. King, 38 Tenn. 123, 1858 Tenn. LEXIS 136 (1858).

This writ may be used by the execution debtor where the execution has been levied on his land before exhausting his personalty. Wilson v. Lowe, 47 Tenn. 153, 1869 Tenn. LEXIS 25 (1869).

To quash an execution on a justice's (now general sessions judge's) judgment for a sum above his jurisdiction. Houser v. McKennon, 60 Tenn. 287, 1872 Tenn. LEXIS 490 (1873); Harris v. David Hadden & Co., 75 Tenn. 214, 1881 Tenn. LEXIS 98 (1881).

The certiorari will lie to quash a judgment for want of service of the summons, or to quash an execution based on a judgment barred by the statute of ten years, or to quash a levy wrongfully made. Ezell v. Holloway, 61 Tenn. 15, 1872 Tenn. LEXIS 335 (1872); Sellars v. Fite, 62 Tenn. 120, 1873 Tenn. LEXIS 152 (1873); McGrew v. Reasons, 71 Tenn. 485, 1879 Tenn. LEXIS 103 (1879); Cannon v. Laman, 75 Tenn. 513, 1881 Tenn. LEXIS 149 (1881).

Court of general sessions was without authority to quash execution issued by it and proper procedure should have been petition for certiorari to supersede and quash the levy. Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 1972 Tenn. LEXIS 346 (Tenn. 1972).

41. —Usury Asserted.

The writ of certiorari will not lie by the stayor of a judgment after the expiration of the stay, to bring up the judgment and execution and to have the same quashed, or to vacate and correct the judgment, for usury in the transaction on which the judgment was rendered. White v. Harris, 24 Tenn. 421, 1844 Tenn. LEXIS 102 (1844).

42. —Failure of Proof.

Where the certiorari is used to have a justice's (now general sessions judge's) judgment and execution quashed upon the ground that the judgment was void for want of service of summons, but the court finds that there was service thereof, the cause cannot be retried on its merits in the circuit court. Ezell v. Holloway, 61 Tenn. 15, 1872 Tenn. LEXIS 335 (1872).

43. —Party — Person Injured in Prior Action.

Where certiorari is used in lieu of audita querela the person suing out the writ must be one injured by the former proceeding and a defendant therein. Baker v. Penecost, 171 Tenn. 529, 106 S.W.2d 220, 1937 Tenn. LEXIS 133 (1937).

Where a judgment was recovered against the mortgagor of an automobile by a third party who levied on the mortgaged car the mortgagor was not entitled to writ of certiorari in lieu of audita querela since the audita querela will only lie as to a defendant injured by the former proceedings so that the audita querela would not be available to a third party and consequently certiorari in lieu thereof is likewise unavailable to such third party. Baker v. Penecost, 171 Tenn. 529, 106 S.W.2d 220, 1937 Tenn. LEXIS 133 (1937).

44. Substitute for Writ of Error.

45. —Where Writ of Error Will Not Lie.

A certiorari will lie to all inferior jurisdictions, the proceedings of which cannot be corrected by writ of error, to remove their proceedings into a superior court, to be affirmed or quashed, or otherwise corrected as law and justice shall require. Bob v. State, 10 Tenn. 173, 1826 Tenn. LEXIS 10 (1826); Dodd v. Weaver, 34 Tenn. 670, 1855 Tenn. LEXIS 116 (1855); Friedman Bros. v. Mathes, 55 Tenn. 488, 1872 Tenn. LEXIS 113 (1872); Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, 1904 Tenn. LEXIS 56 (1904).

46. —Sheriff's Commissioners Setting Aside Homestead.

Action of commissioners appointed to set aside a homestead by the sheriff, out of realty levied on by him, can be removed to the circuit court to be reviewed by certiorari. Wilson v. Lowe, 47 Tenn. 153, 1869 Tenn. LEXIS 25 (1869).

47. Procedure and Practice.

Where petitioners were entitled to relief under either or both the common law writ under § 27-8-101 or the statutory writ under this section it was not error for the trial court to refuse to require petitioners to choose under which provision they intended to proceed. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

The procedural framework for review under both the common law and statutory writs appears in title 27, ch. 9. Fairhaven Corp. v. Tennessee Health Facilities Com., 566 S.W.2d 885, 1976 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1976).

In an unlawful detainer action, a tenant was not entitled to proceed with a writ of certiorari after the writ of supersedeas was dismissed because she filed her petition for writs of certiorari and supersedeas within the time allowed for filing a direct appeal, and the tenant was not deprived of an appeal and could establish a good and sufficient reason for not taking an appeal. Gallatin Hous. Auth. v. Pelt, 532 S.W.3d 760, 2017 Tenn. App. LEXIS 329 (Tenn. Ct. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 610 (Tenn. Sept. 21, 2017).

Chancery court did not err in concluding that the common law writ of certiorari was the proper method of judicial review of a city council's actions because de novo review of the city council's decision to deny an owner/developer building permits would have violated the doctrine of separation of powers; the statutory writ of certiorari was not available because the decision to deny a building permit was an administrative function, reviewable through a common law writ proceeding. State ex rel. Howell v. Farris, — S.W.3d —, 2018 Tenn. App. LEXIS 127 (Tenn. Ct. App. Mar. 9, 2018).

48. —Sufficiency of Petition.

Petition seeking trial de novo from decision of real estate commission revoking license was insufficient for statutory writ of certiorari where petition did not contain a statement of any facts or circumstances showing a probability of innocence but merely a statement that he was not guilty of the charges against him. Real Estate Com. v. McLemore, 202 Tenn. 540, 306 S.W.2d 683, 1957 Tenn. LEXIS 437 (1957).

Petition was insufficient where there was no allegation that plaintiff did anything that would have prevented defendant from appealing, or that defendant did not know that he was served with the warrant, nor was it denied that process was lawfully executed. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

The petitioner must set out the facts of his case and cannot rely upon the insertion of the general words of the statute in his petition. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

Summary judgment dismissal of a complaint as it pertained to the board's ten-day suspension of the teacher's employment was proper because the complaint of March 9, 2007 was obviously filed well over 60 days past the teacher's March 2006 suspension and was therefore time-barred under T.C.A. § 27-9-102; while the teacher would have been entitled to pursue his complaint as to the ten-day suspension by filing a petition for writ of certiorari, he was allotted a limited amount of time within which to do so under T.C.A. § 27-9-102. Bailey v. Blount County Bd. of Educ., — S.W.3d —, 2008 Tenn. App. LEXIS 503 (Tenn. Ct. App. Aug. 27, 2008), aff'd in part, rev'd in part, 303 S.W.3d 216, 2010 Tenn. LEXIS 47 (Tenn. 2010).

49. —Notice of Writ — Service.

The notice of the suing out of the writs of certiorari and supersedeas is all that is necessary to bring the opposing party into court, but it must be served at least five days before the term to which it is made returnable; and if the writ is issued or served within the five days before the first day of the term, it must be made returnable to the next succeeding term. The defendant to the petition will not be in default in failing to make the motion to dismiss the petition at any term before such notice is served upon him. McDowell, McGaughy & Co. v. Keller, 48 Tenn. 449, 1870 Tenn. LEXIS 88 (1870); Hardin v. Williams, 52 Tenn. 385, 1871 Tenn. LEXIS 273 (1871).

50. —Trial De Novo.

A certiorari to retry a cause where the judgment is irregular and erroneous because it was rendered before a justice (now general sessions judge) before the return of the warrant will be granted, but such certiorari will not authorize the court to annul the judgment or quash the execution. Glover v. Holman, 50 Tenn. 519, 1871 Tenn. LEXIS 107 (1871).

The certiorari for a new trial brings up the case to the circuit court for trial de novo on the merits, and the validity or invalidity of the judgment originally rendered by the justice (now general sessions judge) is not the question to be tried, but the original liability. The validity of the judgment is only to be tested by the face of it, and not by proof aliunde. Boyers v. Webb, 69 Tenn. 696, 1878 Tenn. LEXIS 161 (1878); Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, 1904 Tenn. LEXIS 56 (1904).

Where a board has passed on a constitutional right, petitioner may bring the case to circuit court both as to want of jurisdiction, illegality of proceeding, and also upon erroneous conclusions reached, and have a trial de novo on merits. Binford v. Carline, 9 Tenn. App. 364, — S.W.2d —, 1928 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1928).

Where order of public utilities commission dismissed a complaint regarding unreasonably high rates, and petition for writ of certiorari was filed in circuit court, the relief sought was a trial de novo under certiorari as substitute for appeal. Williams v. Southern Bell Tel. & Tel. Co., 164 Tenn. 313, 47 S.W.2d 758, 1931 Tenn. LEXIS 36 (1932).

If writ has been issued under this section the circuit court may hear the matter on its merits or have a trial de novo. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

Acts 1961, ch. 105, amending §§ 57-5-108, 57-5-109 (now §§ 57-5-106 and 57-5-108 respectively) so as to provide for review of refusal of beer license by statutory writ of certiorari with trial de novo was not unconstitutional as requiring courts to exercise administrative function in reviewing action of beer boards. Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260, 1962 Tenn. LEXIS 404 (1962).

The statutory writ of certiorari is authorized in lieu of appeal to correct errors of fact and law committed by the inferior tribunal and the review is de novo. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 1965 Tenn. LEXIS 643 (1965).

51. —Liberality in Granting.

Courts will be lax rather than stringent in granting writ of certiorari to remove case from a justice's court (now general sessions court), where merits are shown and no real fault or negligence can be imputed to petitioner. So where justice withheld his decision and six days later defendant went to his office to ascertain whether judgment had been entered, defendant entitled to writ as he had a right to believe that justice would give him notice of decision in time for an appeal. Watson v. Wells, 20 Tenn. App. 611, 103 S.W.2d 30, 1936 Tenn. App. LEXIS 53 (Tenn. Ct. App. 1936).

52. —Second Certiorari.

A second certiorari instead of an appeal will not be granted for any facts stated in the first petition, or which were then known or might have been known and stated. If permissible at all, a second petition for writs of certiorari and supersedeas should be granted with great caution, and only under special or extraordinary circumstances. Trigg v. Boyce, 5 Tenn. 100, 1817 Tenn. LEXIS 62 (1817); Williams v. Greer's Adm'rs, 5 Tenn. 235, 1817 Tenn. LEXIS 106 (1817); Welsh v. Harman, 16 Tenn. 103, 1835 Tenn. LEXIS 53 (1835); Gardner v. Barger, 51 Tenn. 668, 1871 Tenn. LEXIS 220 (1871).

53. —Nature of Review.

Where certiorari and supersedeas are substituted for appeal the case will be tried as on an appeal. Burt v. Davidson, 24 Tenn. 425, 1844 Tenn. LEXIS 104 (1844).

54. —Judgment Regular on Face.

A justice's (now general sessions judge's) judgment, regular upon its face, cannot be quashed by the circuit court as a void judgment, upon a proceeding by certiorari and supersedeas, instituted by the defendant for that purpose, and not for a new trial. The court cannot go behind the judgment and examine the evidence upon which the justice acted, though such evidence be the note sued on. Simmons v. Harris & Alexander, 66 Tenn. 325, 1874 Tenn. LEXIS 136 (1874).

55. —Vacating Void Judgment upon Certiorari to Quash Execution.

A void judgment will be vacated upon certiorari to quash an execution when it can fairly be taken as an application to bring up the judgment. McCollum v. Mayor of Greeneville, 2 Shan. 352 (1877).

56. —Petition as Evidence.

Petition is not evidence on the trial on the merits. McDowell v. Turney, 37 Tenn. 225, 1857 Tenn. LEXIS 112 (1857).

57. —Petition as Plea of Non Est Factum.

Petition under oath may operate as a plea of non est factum; and it may so operate where it denies that the petitioner gave the alleged stay order by which his name purports to have been entered as stayor. McDowell v. Turney, 37 Tenn. 225, 1857 Tenn. LEXIS 112 (1857); Brown v. E. H. Stabler & Co., 48 Tenn. 444, 1870 Tenn. LEXIS 86 (1870); Wade v. Pratt, 59 Tenn. 231, 1873 Tenn. LEXIS 47 (1873).

The denial of the justice (now general sessions judge) of an account, coming from another county or state, contained in a sworn petition is a sufficient denial to require the plaintiff to prove his account, or to admit evidence to disprove it. Brown v. E. H. Stabler & Co., 48 Tenn. 444, 1870 Tenn. LEXIS 86 (1870).

58. —Pauper's Oath.

Inability to give security for supersedeas is no excuse for not applying for a certiorari, because it may be prosecuted upon the pauper oath. Gardner v. Barger, 51 Tenn. 668, 1871 Tenn. LEXIS 220 (1871).

59. —Jury Trial.

The means of procuring a review by the circuit court of a judgment of the juvenile court is by the statutory writ of certiorari and on review in the circuit court the parties are entitled to a trial by a jury, if desired, and may introduce competent evidence. Doster v. State, 195 Tenn. 535, 260 S.W.2d 279, 1953 Tenn. LEXIS 375 (1953).

60. —Diligence.

Where defendant knew the time the cause was set for hearing but did not investigate until execution some four months later and after the passage of one regular term of court, he did not show due diligence and was not entitled to certiorari. Buell Gray Motors, Inc. v. Fanburg's Garage, 202 Tenn. 648, 308 S.W.2d 410, 1957 Tenn. LEXIS 450 (1957).

61. —Affidavit.

Petition by opponents which challenged a county commission's approval of a landfill could not proceed as a statutory writ of certiorari, under T.C.A. § 27-8-106, because the petition was not verified by sworn affidavit and the opponents could not cure this defect, despite the filing of an amended complaint with verified affidavits, because, pursuant to T.C.A. § 27-9-102, more than sixty days had elapsed from the commission's decision. Brundage v. Cumberland County, 357 S.W.3d 361, 2011 Tenn. LEXIS 1153 (Tenn. Dec. 19, 2011).

NOTES TO DECISIONS

1. Prevention of Additional Levy.

Although the writs of certiorari and supersedeas may, in a proper case, issue before a levy upon property, it cannot be said to be a proper case to prevent the levy of an alias execution upon additional property, where there is an allegation that property has been levied on, without alleging that there was sufficient property levied on to satisfy the debt. Holmes v. Eason, 76 Tenn. 754, 1882 Tenn. LEXIS 6 (1882).

NOTES TO DECISIONS

1. Construction.

When defendants filed petitions for writs of certiorari in the Tennessee Court of Criminal Appeals contesting trial courts'  denials of defendants'  petitions for expungement of dismissed criminal charges, defendants' failure to comply with T.C.A. § 27-8-106 did not deprive the appellate court of jurisdiction because: (1) the statute applied to writs of certiorari in civil cases, so defendants'  cases were reviewed by a common law writ of certiorari; and (2) no statute imposed similar procedural requirements on petitions for writs of certiorari in criminal cases. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

2. Lack of Notarization.

Trial court properly dismissed the inmate's petition for its lack of notarization where he failed to have the petition notarized by a notary public. Jackson v. Tenn. Dep't of Corr., 240 S.W.3d 241, 2006 Tenn. App. LEXIS 356 (Tenn. Ct. App. May 31, 2006).

Prison inmate's certiorari petition seeking judicial review of a disciplinary proceeding, which petition was filed in a county other than that of the prison, was properly dismissed because the venue requirement of T.C.A. § 41-21-803 was jurisdictional, and the petition also had several procedural defects under T.C.A. § 27-8-104(a) and T.C.A. § 27-8-106, so that neither the interests of justice nor the principles of judicial economy would be served by transferring the case to the proper county. Clark v. S. Cent. Corr. Facility, — S.W.3d —, 2007 Tenn. App. LEXIS 442 (Tenn. Ct. App. July 17, 2007), overruled, Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 2014 Tenn. LEXIS 659 (Tenn. Sept. 22, 2014).

Chancery court was without subject matter jurisdiction to review a zoning board's actions in denying a permit because the applicants did not file a petition for a writ of certiorari that complied with the statutory requirements within sixty days as their amended petition, like the first petition, contained a representation that the matters set forth in the petition were true and correct, but it did not reflect that it was sworn to before the clerk of the circuit court, the judge, any judge of the court of general sessions, or a notary public. Hirt v. Metro. Bd. of Zoning Appeals, — S.W.3d —, 2016 Tenn. App. LEXIS 958 (Tenn. Ct. App. Dec. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 241 (Tenn. Apr. 13, 2017).

3. Verification.

Chancery court properly dismissed an inmate's petition for writ of certiorari for lack of subject matter jurisdiction because the petition was not properly verified as required by the Tennessee Constitution and statue where, while the petition was notarized, titled “Verified Complaint,” and requested that the court take the contents of the petition as true, the petition was not verified, and the fact that the petition was notarized served only to acknowledge the petition. Best v. Tenn. Dep't of Corr., — S.W.3d —, 2016 Tenn. App. LEXIS 742 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 67 (Tenn. Jan. 19, 2017).

Appellant failed to affirm that the contents of his petition were true; because of this, his petition did not comply with the requirements of Tenn. Const. art. VI, § 10 and T.C.A. § 27-8-104(a); therefore, the trial court properly dismissed his petition for lack of subject matter jurisdiction. Sepulveda v. Tenn. Bd. of Parole, — S.W.3d —, 2018 Tenn. App. LEXIS 751 (Tenn. Ct. App. Dec. 21, 2018).

4. Nature and Scope of Remedy.

The criminal courts of Shelby County have authority to grant extraordinary relief in appeals from courts of inferior jurisdiction. Franks v. State, 565 S.W.2d 36, 1977 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. 1977).

5. Dismissal for Want of Fiat or Order.

Writ of certiorari issued without such order or fiat is subject to be dismissed. McDowell, McGaughy & Co. v. Keller, 48 Tenn. 449, 1870 Tenn. LEXIS 88 (1870); King v. Williams, 54 Tenn. 303, 1872 Tenn. LEXIS 51 (1872).

6. —Waiver.

Certiorari issued in the circuit court without fiat may be dismissed, but, if treated as valid and there be no motion to dismiss for that cause in the lower court, the appellate court will not dismiss it for the error. Nashville v. Mason, 11 Tenn. App. 344, — S.W.2d —, 1930 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1930).

7. —Waiver of Objections to Pauper Oath.

Objection to pauper oath where the writs of certiorari and supersedeas were granted by fiat, upon bond, is waived by failure to move to dismiss the petition for such oath. Melton v. Edwards, 53 Tenn. 250, 1871 Tenn. LEXIS 352 (1871).

8. Order for Writ.

9. —Form of Fiat — Striking Void Part.

The correct form of the fiat on the petition for writs of certiorari and supersedeas, to be addressed to the clerk of the circuit court, is in these words: “Issue writs of certiorari and supersedeas as prayed for” in the within or foregoing petition, as the case may be. If the clerk goes beyond the fiat and the law, the unauthorized part may be struck out by the judge or court having jurisdiction of the case, upon proper application. Woods v. Batey, 83 Tenn. 733, 1885 Tenn. LEXIS 103 (1885).

10. —Modes of Granting Writ.

It is immaterial whether the application be made in open court and an order for the issuance of the writ entered upon the minutes, or the fiat of the judge granting the writ be endorsed upon the petition. King v. Williams, 54 Tenn. 303, 1872 Tenn. LEXIS 51 (1872).

11. Election Contests.

Defendant in an election contest is entitled to certiorari and supersedeas if an injunction issued by the court restraining him from interfering with plaintiff's possession of the office was beyond the power and jurisdiction of the court issuing the same. Hagan v. Henry, 168 Tenn. 223, 76 S.W.2d 994, 1934 Tenn. LEXIS 43 (1934).

12. Use of Writ — Examples.

Trial court did not abuse its discretion in granting certiorari and supersedeas as to suit brought in justice of peace court as result of traffic accident upon petition stating that person driving automobile was not agent of defendants and that automobile involved did not belong to defendants and showing due diligence by defendants in their attempt to furnish appeal bond within statutory time. Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788, 1956 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1956).

NOTES TO DECISIONS

1. Constitutionality of Section.

This section is constitutional, as a regulation in extension, and not in restriction, of the remedy by certiorari. Duggan v. McKinney, 15 Tenn. 21, 1834 Tenn. LEXIS 5 (1834).

2. Cases Covered by Section.

Two justices of the peace (now general sessions judges) cannot grant writs of certiorari and supersedeas to bring up to the circuit court the proceedings of a justice, for causes originating after the judgment. This statute was only intended to apply to cases where the proceeding by writ of certiorari and supersedeas is substituted in place of an appeal, and a new trial asked on the merits. Rogers v. Ferrell, 18 Tenn. 254, 1837 Tenn. LEXIS 15 (1837).

3. Time for Grant.

Under this section, two justices (now general sessions judges) have no authority to grant a certiorari after the lapse of 20 days from the rendition of the justice's judgment, and a certiorari so granted should be dismissed on motion. Vanleer v. Johnston, 16 Tenn. 162, 1835 Tenn. LEXIS 67 (1835); Dixon v. Caruthers, 17 Tenn. 30, 1836 Tenn. LEXIS 9 (1836); Fisher v. Baldridge, 91 Tenn. 418, 19 S.W. 227, 1892 Tenn. LEXIS 7 (1892).

4. Petition Addressed to Circuit Court Judge.

The two justices (now general sessions judges) have no power to act upon the petition for the writ of certiorari, when addressed to the judge of the circuit court; and if the writ be granted by them it will be dismissed. Duggan v. McKinney, 15 Tenn. 21, 1834 Tenn. LEXIS 5 (1834).

5. Forcible Entry and Detainer Cases.

Two justices of the peace (now general sessions judges) have authority to grant writs of certiorari and supersedeas for the removal of a case of forcible entry and unlawful detainer from the justice's court to the circuit court. Fisher v. Baldridge, 91 Tenn. 418, 19 S.W. 227, 1892 Tenn. LEXIS 7 (1892).

6. Proceedings upon Forma Pauperis.

This section is to be construed with § 27-8-113 dealing with application for supersedeas upon forma pauperis. Lewis v. Simmons, 200 Tenn. 60, 289 S.W.2d 702, 1956 Tenn. LEXIS 378 (1956).

Upon application for certiorari and supersedeas under this section upon forma pauperis the adverse party is entitled to notice as provided in § 27-8-113. Lewis v. Simmons, 200 Tenn. 60, 289 S.W.2d 702, 1956 Tenn. LEXIS 378 (1956).

NOTES TO DECISIONS

1. Lack of Notarization.

Trial court properly dismissed the inmate's petition for its lack of notarization where he failed to have the petition notarized by a notary public. Jackson v. Tenn. Dep't of Corr., 240 S.W.3d 241, 2006 Tenn. App. LEXIS 356 (Tenn. Ct. App. May 31, 2006).

Prison inmate's certiorari petition seeking judicial review of a disciplinary proceeding, which petition was filed in a county other than that of the prison, was properly dismissed because the venue requirement of T.C.A. § 41-21-803 was jurisdictional, and the petition also had several procedural defects under T.C.A. § 27-8-104(a) and T.C.A. § 27-8-106, so that neither the interests of justice nor the principles of judicial economy would be served by transferring the case to the proper county. Clark v. S. Cent. Corr. Facility, — S.W.3d —, 2007 Tenn. App. LEXIS 442 (Tenn. Ct. App. July 17, 2007), overruled, Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 2014 Tenn. LEXIS 659 (Tenn. Sept. 22, 2014).

Chancery court was without subject matter jurisdiction to review a zoning board's actions in denying a permit because the applicants did not file a petition for a writ of certiorari that complied with the statutory requirements within sixty days as their amended petition, like the first petition, contained a representation that the matters set forth in the petition were true and correct, but it did not reflect that it was sworn to before the clerk of the circuit court, the judge, any judge of the court of general sessions, or a notary public. Hirt v. Metro. Bd. of Zoning Appeals, — S.W.3d —, 2016 Tenn. App. LEXIS 958 (Tenn. Ct. App. Dec. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 241 (Tenn. Apr. 13, 2017).

2. Construction.

The words “duly sworn to” mean that the petition must be verified by affidavit. Drainage Dist. v. Askew, 138 Tenn. 136, 196 S.W. 147, 1917 Tenn. LEXIS 14 (1917).

Trial court did not err in dismissing a prisoner's pro se petition for a common law writ of certiorari appealing his convictions for disciplinary infractions; while the petition contained the prisoner's verification that its contents were true and correct to the best of his knowledge, he failed to have the petition notarized by a notary public, as required by Tenn. Const. art. VI, § 10, T.C.A. § 27-8-104(a), and T.C.A. § 27-8-106. Wilson v. Tenn. Dep't of Corr., — S.W.3d —, 2006 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 13, 2006).

Inmate's petition for writ of certiorari seeking review of prison disciplinary proceedings was properly dismissed because the inmate failed to file a petition for writ of certiorari that complied with T.C.A. §§ 27-8-104 and 27-8-106 within 60 days, and the trial court did not extend the deadline for filing the petition within the 60 days. Terry v. Dep't of Corr., — S.W.3d —, 2009 Tenn. App. LEXIS 166 (Tenn. Ct. App. Apr. 28, 2009).

3. Affiants — Who Are Proper.

Petition may be sworn to by any one of the several petitioners, or by their agent. Dwiggins v. Robertson, 1 Tenn. 81, 1804 Tenn. LEXIS 29 (1804); Foster v. Blount, 1 Tenn. 343, 1808 Tenn. LEXIS 43 (1808).

4. First Application — When Statement Required.

Petition for certiorari in lieu of appeal must state that it is the first application, or it may be dismissed on motion. Jones v. Williams, 32 Tenn. 105, 1852 Tenn. LEXIS 27 (1852); McGhee v. Grady, 80 Tenn. 89, 1883 Tenn. LEXIS 143 (1883).

The writ of certiorari is the proper remedy to bring into the circuit court the papers in a cause tried by a justice of the peace (now general sessions judge), where the appeal was prayed and obtained in time, and perfected by bond or the pauper oath as required by law, and the petition for the writ may be filed at any stage of the cause, and need not state that it is the first application for a certiorari. McGhee v. Grady, 80 Tenn. 89, 1883 Tenn. LEXIS 143 (1883).

Trial court did not err when it dismissed the inmate's petition for a writ of certiorari where he did not state in his petition that it was his first application for the writ, which was required under T.C.A. § 27-8-106. Jackson v. Tenn. Dep't of Corr., 240 S.W.3d 241, 2006 Tenn. App. LEXIS 356 (Tenn. Ct. App. May 31, 2006).

Lawyer's verification of his petition for writ of certiorari to appeal from a decision of the Disciplinary Board that stated “under oath or by affirmation that the facts in the preceding petition for certiorari are true and correct to the best of my knowledge, information and belief” clearly satisfied Tenn. Sup. Ct. R. 9, § 1.3, Tenn. Const. art. VI, § 10, and T.C.A. § 27-8-106, although the lawyer failed to recite that this was his first petition. Talley v. Bd. of Prof'l Responsibility, 358 S.W.3d 185, 2011 Tenn. LEXIS 971 (Tenn. Oct. 26, 2011).

5. Grounds for Dismissal.

In a prisoner's challenge to the actions of the prison disciplinary board, because of the prisoner's repeated failures to furnish the trial court with the affidavit required by T.C.A. § 41-21-805, the trial court properly dismissed his petition; even if the prisoner's proposed amendment to his petition had satisfied the verification requirement, which was questionable, the prisoner's failure to comply with T.C.A. § 41-21-805 constituted an independent and sufficient ground upon which to dismiss the petition as the proposed amendment did not purport to remedy that omission. Adams v. Tenn. Dep't of Corr., — S.W.3d —, 2007 Tenn. App. LEXIS 357 (Tenn. Ct. App. May 30, 2007).

6. Jurisdiction.

Trial court did not have jurisdiction to grant an extension of time to comply with the verification requirement of T.C.A. § 27-8-106 for a writ of certiorari, because petitioner's motion to amend to comply with that requirement was made beyond the 60-day period in which the petition had to be filed and verified; the appellate court was thus also without jurisdiction and dismissed petitioner's appeal. Blair v. Tenn. Bd. of Prob. & Parole, 246 S.W.3d 38, 2007 Tenn. App. LEXIS 483 (Tenn. Ct. App. July 27, 2007).

Procedural requirements for petitions for writ of certiorari set forth in T.C.A. § 27-8-106 do not apply in criminal cases. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

When defendants filed petitions for writs of certiorari in the Tennessee Court of Criminal Appeals contesting trial courts'  denials of defendants'  petitions for expungement of dismissed criminal charges, defendants' failure to comply with T.C.A. § 27-8-106 did not deprive the appellate court of jurisdiction because: (1) the statute applied to writs of certiorari in civil cases, so defendants'  cases were reviewed by a common law writ of certiorari; and (2) no statute imposed similar procedural requirements on petitions for writs of certiorari in criminal cases. State v. L.W., 350 S.W.3d 911, 2011 Tenn. LEXIS 759 (Tenn. Aug. 17, 2011).

Petition by opponents which challenged a county commission's approval of a landfill could not proceed as a statutory writ of certiorari, under T.C.A. § 27-8-106, because the petition was not verified by sworn affidavit and the opponents could not cure this defect, despite the filing of an amended complaint with verified affidavits, because, pursuant to T.C.A. § 27-9-102, more than sixty days had elapsed from the commission's decision. Brundage v. Cumberland County, 357 S.W.3d 361, 2011 Tenn. LEXIS 1153 (Tenn. Dec. 19, 2011).

Trial court lacked subject matter jurisdiction to review the ruling of a city's beer board denying appellant a beer permit because appellant's petition and amended petition were not sworn to before a clerk of court, any judge, or a notary public as required by T.C.A. § 27-8-106. Hunter v. City of Chattanooga Beer Bd., — S.W.3d —, 2017 Tenn. App. LEXIS 686 (Tenn. Ct. App. Oct. 12, 2017).

Trial court properly dismissed, for lack of jurisdiction, the neighbors'  petition for writ of certiorari challenging a planning commission's decision because their motions to alter or amend were attempts to relitigate a matter that had already adjudicated, the trial court's final order of dismissal and subsequent order denying relief to the neighbors resolved all of the claims between the parties, and the neighbors'  petition for writ of certiorari did not comport with the statutory and constitutional requirements in order to vest the trial court with subject matter jurisdiction. Metz v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2017 Tenn. App. LEXIS 694 (Tenn. Ct. App. Oct. 17, 2017).

Trial court lacked subject matter jurisdiction to review a decision of a board of zoning appeals forbidding landowners from hosting an off-road event because (1) the petition seeking review was not verified as required, and (2) the petition could not be treated as seeking declaratory relief, as the petition contested a quasi-judicial decision, and the relief sought was identical to the relief available in a petition for writ of certiorari. Keith v. Maury Cty. Bd. of Zoning Appeals, — S.W.3d —, 2019 Tenn. App. LEXIS 406 (Tenn. Ct. App. Aug. 21, 2019).

NOTES TO DECISIONS

1. Motion to Dismiss Petition — Time for Making.

Motion to dismiss a petition for writs of certiorari and supersedeas shall be made at the first term after notice to the adverse party, or at the earliest opportunity presented. Lookout Mt. Incline & Lula Lake R.R. v. Flowers, 101 Tenn. 362, 47 S.W. 485, 1898 Tenn. LEXIS 74 (1898).

2. —Allegations in Motion.

The motion must set forth the grounds relied upon. Nashville v. Mason, 11 Tenn. App. 344, — S.W.2d —, 1930 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1930).

3. Delays — Motion to Dismiss Subject Thereto.

When a motion to dismiss a petition for certiorari and supersedeas is made at the return term of the certiorari or at the first term after the service of the supersedeas, according to the settled rule of practice, the motion stands as any other cause on the docket, and is subject to the ordinary delays incident to judicial proceedings, such as continuances by consent, or postponement, in the discretion of the court. Scovel v. Mayor of Nashville, 2 Shan. 260 (1877).

4. Review — Presumptions.

On review it must be assumed that all issues before the justice (now general sessions judge) were properly joined ore tenus, and that evidence was properly introduced thereunder. Interstate Life & Acci. Co. v. Spurlock, 16 Tenn. App. 250, 64 S.W.2d 75, 1933 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1933).

NOTES TO DECISIONS

1. Sufficiency of Petition.

If the whole judgment is not complained of, the petition must show in what the error consists and the amount of the same. A general statement that the judgment is for a much larger amount than the plaintiff is entitled to is not sufficient. O'Sullivan v. Larry, 39 Tenn. 54, 1858 Tenn. LEXIS 251 (1858).

NOTES TO DECISIONS

1. Liability of Surety — Extent.

Where the bond is conditioned for the payment of damages and costs, the judgment against the surety will be for interest on the judgment and the costs only; and where the bond is conditioned for the payment of costs alone, the judgment will be for costs only, for a judgment may be rendered to the extent of the conditions of the bond, though not in full compliance with the requirements of the statute. Triplet v. Gray, 15 Tenn. 15, 15 Tenn. 16, 1834 Tenn. LEXIS 3 (1834); Tipton v. Anderson, 16 Tenn. 222, 1835 Tenn. LEXIS 82 (1835); Maxwell v. Salts, 44 Tenn. 233, 1867 Tenn. LEXIS 37 (1867).

The surety on the bond, conditioned as required by this section, is liable for the debt as well as the damages and costs, upon the dismissal of the writs of certiorari and supersedeas. Copeland v. Cox, 52 Tenn. 171, 1871 Tenn. LEXIS 247 (1871).

2. Amendment of Bond.

Defective certiorari bond may be amended by giving new bond and in the circuit court. Jennings v. Pray, 16 Tenn. 85, 1835 Tenn. LEXIS 48 (1835).

3. Appellate Court Judgment on Bond.

Appellate court judgment on certiorari bond will be such as the circuit judge should have rendered, where the case is reversed for error in failure to render the proper judgment upon such bond. Triplet v. Gray, 15 Tenn. 15, 15 Tenn. 16, 1834 Tenn. LEXIS 3 (1834); Tipton v. Anderson, 16 Tenn. 222, 1835 Tenn. LEXIS 82 (1835).

NOTES TO DECISIONS

1. Release of Levy by Supersedeas — Extent.

The issuance and service of the writ of supersedeas releases the personal property levied on under attachment or execution, and authorizes the officer to return it to the debtor, though the writ was obtained upon the pauper oath; but the lien on land created by the levy is not released by the supersedeas which is finally dismissed. McCamy v. Lawson, 40 Tenn. 256, 1859 Tenn. LEXIS 69 (1859); Littleton v. Yost, 71 Tenn. 267, 1879 Tenn. LEXIS 73 (1879); Rocco v. Parczyk, 77 Tenn. 328, 1882 Tenn. LEXIS 58 (1882).

2. When Supersedeas Unnecessary.

Necessity for issuance of supersedeas does not exist where there is no court order in fieri to stay. Cockrill v. Peoples Sav. Bank, 155 Tenn. 342, 293 S.W. 996, 1926 Tenn. LEXIS 53 (1927).

3. Fiat Awarding Supersedeas — Effect on Appellate Court.

The appellate court cannot supersede the fiat of a judge, awarding a writ of supersedeas as incident to a writ of certiorari to bring up the proceedings of an inferior to a superior tribunal for revision. Woods v. Batey, 83 Tenn. 733, 1885 Tenn. LEXIS 103 (1885).

4. Preservation of Status Quo.

The writ of supersedeas can only preserve the status quo or stay proceedings and cannot relate back so as to undo what has been done. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

Where the commissioners of elections of Shelby County were removed from office by the former state board of elections, such commissioners were not entitled to a writ of supersedeas superseding the orders of the board in removing them from office since the action of the board was self-executing so that to have the effect asked by the commissioners it would be necessary to give the writ a back reaching effect. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

NOTES TO DECISIONS

1. Directory Nature of Statute — Waiver of Notice.

This statute is merely directory, and notice is waived by voluntary appearance. Legate v. John Ward & Co., 45 Tenn. 451, 1868 Tenn. LEXIS 28 (1868); Combs v. Vogeli, 66 Tenn. 271, 1874 Tenn. LEXIS 121 (1874).

The fiat for a supersedeas, issued upon the pauper oath, without notice, is not void; but the petition is subject to be dismissed for the error in the issuance of the supersedeas without notice. Combs v. Vogeli, 66 Tenn. 271, 1874 Tenn. LEXIS 121 (1874).

2. Liberal Allowance.

The law is very liberal in allowing the prosecution of suits in forma pauperis, the object being to place the poor on a level with the rich, considering this a defendant was allowed a petition for certiorari and supersedeas on a pauper's oath which showed that some of his property was encumbered and that he had only an equitable interest therein, that he had offered to mortgage everything he owned to make an appeal and that he could procure no one to sign the required bond. Hewell v. Cherry, 25 Tenn. App. 420, 158 S.W.2d 370, 1941 Tenn. App. LEXIS 125 (Tenn. Ct. App. 1941).

3. Notice to Adverse Party.

To sustain a supersedeas ordered by one of the judges of the Supreme Court under writ of error, under § 27-6-111, notice to the “adverse party” of the application is necessary under this section. Campbell v. Boulton, 62 Tenn. 354, 1874 Tenn. LEXIS 58 (1874); Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880).

Court of Appeals follows rule of the Supreme Court that this statute authorizes the issuance of supersedeas in aid of writ of error. Sullivan v. Eason, 5 Tenn. App. 137, — S.W. —, 1927 Tenn. App. LEXIS 45 (Tenn. Ct. App. 1927).

The adverse party is entitled to his day in court on the issues and to notice as provided in this section. Lewis v. Simmons, 200 Tenn. 60, 289 S.W.2d 702, 1956 Tenn. LEXIS 378 (1956).

4. —“Adverse Party” — Meaning.

Defendants in a judgment are not adverse parties to each other, although their interests may be adverse, but the plaintiff in the judgment is the adverse party to the defendants or either of them and the notice should be given to him. Campbell v. Boulton, 62 Tenn. 354, 1874 Tenn. LEXIS 58 (1874).

The “adverse party” is the party or parties in whose favor judgments were rendered in the court below. Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880).

5. Time of Filing Pauper's Oath.

Time may be allowed beyond the term of the chancery court, for an appellant to take the pauper's oath, when an appeal has been prayed and granted to the Supreme Court. Andrews v. Page, 49 Tenn. 634, 1871 Tenn. LEXIS 56 (1871).

6. Waiver of Objection to Pauper's Oath.

Objection to pauper oath is waived by failure to move to dismiss the petition for such oath, where writs were granted by fiat, upon the execution of bond, and the pauper oath was taken instead of giving the bond. Melton v. Edwards, 53 Tenn. 250, 1871 Tenn. LEXIS 352 (1871).

7. Time for Motion to Dismiss for Noncompliance.

Motion to dismiss for noncompliance with statute is to be made at the first term after notice. Lookout Mt. Incline & Lula Lake R.R. v. Flowers, 101 Tenn. 362, 47 S.W. 485, 1898 Tenn. LEXIS 74 (1898).

8. Construction With Other Statutes.

This section and § 27-8-105 are to be construed together. Lewis v. Simmons, 200 Tenn. 60, 289 S.W.2d 702, 1956 Tenn. LEXIS 378 (1956).

Upon application for certiorari and supersedeas under § 27-8-105 upon forma pauperis, the adverse party is entitled to notice as provided in this section. Lewis v. Simmons, 200 Tenn. 60, 289 S.W.2d 702, 1956 Tenn. LEXIS 378 (1956).

NOTES TO DECISIONS

1. Restitution to Office.

On certiorari to review action of a board of city commissioners in depriving a member of that board of his office, a writ of restitution to office was not proper remedy, such writ being unenlarged as to scope by this section. Ashcroft v. Goodman, 139 Tenn. 625, 202 S.W. 939, 1918 Tenn. LEXIS 13 (1918).

2. Impaneling Jury After Dismissal of Certiorari.

While this section expressly provides for the impanelment of a jury, if the plaintiff in the petition shall obtain relief, and there is no express provision for the impanelment of a jury, given by our statutes, where the certiorari is dismissed, inasmuch as § 27-8-118 empowers the circuit court to render a final judgment in such case, the power to impanel a jury necessarily exists, so as to enable the court to render a final judgment, for there is no remedy upon the certiorari bond in any other court. Weigand v. Malatesta, 46 Tenn. 362, 1869 Tenn. LEXIS 68 (1869); Simmons v. Taylor, 91 Tenn. 363, 18 S.W. 867, 1891 Tenn. LEXIS 105 (1892).

3. Final Judgment by Circuit Court.

Where a cause is brought to the circuit court by certiorari, it is required of the court to render a final judgment, and the case cannot be remanded, with a procedendo, to the court below. A judgment cannot be rendered on the certiorari bond in any other suit. Weigand v. Malatesta, 46 Tenn. 362, 1869 Tenn. LEXIS 68 (1869); Simmons v. Taylor, 91 Tenn. 363, 18 S.W. 867, 1891 Tenn. LEXIS 105 (1892).

4. Standard of Review.

Terminated firefighter was entitled to damages because the parties agreed that the city manager held the exclusive authority to terminate the firefighter's employment, that the manager terminated the firefighter based upon the fire chief's recommendation, and that the manager reviewed the manager's own termination decision in a hearing on appeal. Regardless of whether the city manager acted with material evidence, the procedure utilized was unlawful because the person who made the termination decision also affirmed the same decision on appeal. Keller v. Casteel, — S.W.3d —, 2019 Tenn. App. LEXIS 39 (Tenn. Ct. App. Jan. 28, 2019).

NOTES TO DECISIONS

1. Dismissal.

2. —Interest.

Interest is not confined to cases where the judgment below is affirmed on trial, but extends to cases where certiorari is dismissed. Haley v. Moore, 2 Shan. 153 (1876).

3. —Want of Jurisdiction.

Where the certiorari is dismissed for want of jurisdiction, no judgment can be rendered, except for costs. Taul's Adm'r v. Collinsworth, 10 Tenn. 579, 1831 Tenn. LEXIS 20 (1831).

4. —New Judgment.

When the certiorari is dismissed for any cause, the appellate or revising court must, in all cases, render a new judgment against the petitioner and his sureties, for the judgment below, or the amount thereof remaining unsatisfied, with the interest and costs. Haley v. Moore, 2 Shan. 153 (1876); Littleton v. Yost, 71 Tenn. 267, 1879 Tenn. LEXIS 73 (1879); Thompson v. McMillan, 89 Tenn. 110, 14 S.W. 439, 1890 Tenn. LEXIS 27 (1890); Taylor v. Wells, 108 Tenn. 719, 69 S.W. 266, 1902 Tenn. LEXIS 20 (1902).

5. Affirmance.

6. —New Judgment.

Where judgment in an unlawful detainer action in a justice of the peace (now general sessions) court had been rendered against the defendant, and he filed a petition for certiorari and supersedeas which was granted but the defendant failed to make the bond required by the court and these proceedings were dismissed whereon the circuit court without a jury properly allowed judgment against the defendant and his sureties for the amount of the ment in the justice of the peace court, plus the rents accruing during the ensuing litigation, plus the costs of the action. Robertson v. Penn Mut. Life Ins. Co., 22 Tenn. App. 387, 123 S.W.2d 848, 1938 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1938).

Where judgment was rendered against a debtor and execution issued with a levy upon an automobile of the debtor, the debtor claiming this automobile exempt under former § 26-2-101 could properly attack the levy by means of certiorari and the execution of a supersedeas bond thus regaining possession of the car, however since the debtor in his petition for certiorari failed to alleged that he was head of a household and failed to allege that he had selected this automobile as exempt property prior to his petition, the petition was properly dismissed, whereon the court should render a new judgment against the debtor and his surety on the supersedeas bond for the amount of the old judgment plus costs. Keen v. Alexander, 195 Tenn. 564, 260 S.W.2d 297, 1953 Tenn. LEXIS 380 (1953).

7. —Judgment upon Quashing Execution in Part.

Where an execution satisfied in part only has been superseded in toto, the court, after quashing the execution as to the satisfied part, will not remand and award precedendo as to the remainder, but will enter judgment upon the bond for supersedeas for such unsatisfied remainder. Thompson v. McMillan, 89 Tenn. 110, 14 S.W. 439, 1890 Tenn. LEXIS 27 (1890).

8. Rents and Profits.

This section has no special relation to rents and profits. Ladd v. Riggle, 53 Tenn. 620, 1871 Tenn. LEXIS 403 (1871).

NOTES TO DECISIONS

1. Constitutionality.

Private act authorizing board of commissioners of city to revoke or suspend permits did not violate Tenn. Const., art. I, § 8, since cab operators could correct any arbitrary or illegal action of the board under provisions of this act. Large v. Elizabethton, 185 Tenn. 156, 203 S.W.2d 907, 1947 Tenn. LEXIS 315 (1947).

2. —Limitations of Review.

Provision of Acts 1937 (3rd E.S.), ch. 2, § 7 that the provisions of this section as to the review of the action of boards by certiorari were inapplicable to the action of former state board of elections in the removal of commissioners of elections was proper and a competent action of the legislature since the remedy by certiorari afforded under other statutes and under the common law would still be available to the removed officials. McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752, 1938 Tenn. LEXIS 16 (1938).

3. Purposes of Act.

4. —Cumulative to Common Law.

This statute does not destroy the distinction between common law writs and writs of certiorari provided for by statute. Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059, 1933 Tenn. LEXIS 73 (1934).

This statute is not exclusive but merely adds to the powers and rights given under common law writ of certiorari, hence circuit court on petition for writ of certiorari could determine whether regulation invoked by beer committee as reason for denial of permit was within its powers or outside its province. Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891, 1947 Tenn. LEXIS 363 (1947).

5. —Supervisory Review.

On this certiorari the court's jurisdiction is “supervisory,” not “appellate,” and certiorari does not lie to have judicial review of the action of the state board of equalization on the merits. McCord v. Nashville, C. & S. L. Ry., 187 Tenn. 277, 213 S.W.2d 196, 1948 Tenn. LEXIS 429 (1948).

6. —Procedural.

This section neither enlarges nor diminishes the scope of review by certiorari but only describes procedure. McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752, 1938 Tenn. LEXIS 16 (1938); Groomes v. Nashville, 176 Tenn. 391, 141 S.W.2d 899, 1939 Tenn. LEXIS 129 (1940); Simm v. Dougherty, 186 Tenn. 356, 210 S.W.2d 486, 1948 Tenn. LEXIS 557 (1948); Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 193 Tenn. 284, 246 S.W.2d 15, 1951 Tenn. LEXIS 356 (1951); Tennessee Real Estate Com. v. Potts, 221 Tenn. 585, 428 S.W.2d 794, 1968 Tenn. LEXIS 488 (1968).

It is true that §§ 27-9-101 — 27-9-113 do not destroy the distinction between the common law writ of certiorari and the statutory writ of certiorari in lieu of appeal and that the sections prescribe the procedure for both writs, but so much of the statutes as prescribe a de novo hearing apply exclusively to the statutory writ. Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260, 1962 Tenn. LEXIS 404 (1962).

7. Construction with Other Acts.

This section neither enlarges nor diminishes the scope of review by certiorari, but only prescribes procedure and it is competent for the legislature to make this section inapplicable to review actions of particular boards since this action alone does not prevent review under other statutes or the common law. McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752, 1938 Tenn. LEXIS 16 (1938).

The revocation of an airport security officer's commission for one year was not a “dismissal, demotion, transfer to another county, suspension or lay off” under former § 8-30-327 [repealed] and jurisdiction was not with the civil service commission. Review of boards and commissions “where not otherwise specifically provided” may be brought under this chapter. Wheeler v. Memphis, 685 S.W.2d 4, 1984 Tenn. App. LEXIS 3292 (Tenn. Ct. App. 1984).

Lack of express review language contained in T.C.A. § 13-4-104 was not fatal to the trial court's jurisdiction over a petition for writ of certiorari challenging a planning commission's approval of a utility project where T.C.A. § 27-9-101 contemplated writ of certiorari review where review was not expressly provided for otherwise by statute. ISI Holdings of TN, LLC v. Mount Pleasant Reg'l Planning Comm'n, — S.W.3d —, (Tenn. Ct. App. Sept. 12, 2017).

8. —Election Laws.

Acts 1937, ch. 7, § 2 (since repealed) denied to county election commissioner, removed from office by the state board of elections, any right to a review of such removal, by the courts or otherwise. Waldauer v. Britton, 172 Tenn. 649, 113 S.W.2d 1178, 1937 Tenn. LEXIS 111 (1938); McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752, 1938 Tenn. LEXIS 16 (1938).

Trial court acted without jurisdiction in a case brought by a mayor by entering an injunction against an election commission precluding a recall election because the commission was entitled to make a final determination regarding the issues surrounding the recall ballot before judicial review; under T.C.A. § 27-9-101, judicial review was available as to final orders. The commission was preempted by the trial court's injunction from meeting and engaging in the statutorily prescribed ministerial duties required of it to make final decisions regarding the recall ballot. Littlefield v. Hamilton County Election Comm'n, — S.W.3d —, 2011 Tenn. App. LEXIS 602 (Tenn. Ct. App. Nov. 3, 2011).

County election commission's decision to certify defendant as a qualified judicial candidate on the ballot was a final administrative decision subject to judicial review by common-law writ of certiorari. Plaintiff, who had actual notice of the election commission hearing, was “aggrieved” by the election commission's final decision within the meaning of T.C.A. § 27-9-101 and, therefore, had standing to file a petition for writ of certiorari. McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

9. —Beer Statutes.

The writ of certiorari provided by this section does not apply to §§ 57-5-105, 57-5-107 — 57-5-109 (now §§ 57-5-105, 57-5-106 — 57-5-108). Putnam County Beer Board v. Speck, 184 Tenn. 616, 201 S.W.2d 991, 1947 Tenn. LEXIS 284 (1947); Owings v. Wasson, 188 Tenn. 416, 219 S.W.2d 908, 1949 Tenn. LEXIS 354 (1949).

The writ of certiorari provided by this chapter has no application to §§ 57-5-105, 57-5-107, 57-5-109 (now §§ 57-5-105, 57-5-106 — 57-5-108). Shelton v. Mooneyhan, 205 Tenn. 425, 326 S.W.2d 825, 1959 Tenn. LEXIS 380 (1959); but see, Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260, 1962 Tenn. LEXIS 404 (1962), and §§ 57-5-105, 57-5-109 (now § 57-5-108), as amended by Acts 1961, ch. 105.

Acts 1961, ch. 105, amending §§ 57-5-105, 57-5-109 (now § 57-5-108) so as to provide for review of refusal of beer license by statutory writ of certiorari with trial de novo was not unconstitutional as requiring courts to exercise administrative function in reviewing action of beer boards. Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260, 1962 Tenn. LEXIS 404 (1962).

Under Acts 1961, ch. 105, amending §§ 57-5-105 and 57-5-109 (now § 57-5-108), a person aggrieved by the action of beer board had the sole remedy of having the same reviewed by either the circuit or chancery court by statutory writ of certiorari with trial de novo as a substitute for appeal with the cause being tried as if it had originated in such court and the trial judge is required to make an independent judgment on the merits substituting his judgment for that of the board. Cantrell v. De Kalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480, 1964 Tenn. LEXIS 423 (1964); Hughes v. Little, 213 Tenn. 574, 376 S.W.2d 482, 1964 Tenn. LEXIS 424 (1964); Chadwick v. Beer Committee of Anderson County, 213 Tenn. 592, 376 S.W.2d 490, 1964 Tenn. LEXIS 426 (1964); Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964); Ewin v. Richardson, 214 Tenn. 628, 382 S.W.2d 532, 1964 Tenn. LEXIS 515 (1964).

10. —Insurance Licenses.

In proceedings in the circuit court of Davidson County to require commissioner of insurance and banking (now commissioner of commerce and insurance) to issue a license to write insurance as an agent, the rights of the parties were controlled entirely by the applicable insurance statute and this and the following sections had no application. Odle v. McCormack, 185 Tenn. 439, 206 S.W.2d 416, 1947 Tenn. LEXIS 350 (1947).

11. —Bill for Declaratory Judgment.

Review of proceeding before city board of commissioners cannot be made by bill for a declaratory judgment. Brooks v. Memphis, 192 Tenn. 371, 241 S.W.2d 432, 1951 Tenn. LEXIS 415 (1951).

Declaratory judgment was not the proper remedy for one who thought to challenge the right of the board of accountancy to issue a license after such license had been issued. Coleman v. Blackburn, 206 Tenn. 328, 333 S.W.2d 562, 1960 Tenn. LEXIS 368 (1960).

Certiorari was not sole remedy for testing validity of amendment of zoning ordinance which did not comply with mandatory provisions of §§ 13-7-203, 13-7-204 and such amendment could be tested under Declaratory Judgments Act. Holdredge v. Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 1966 Tenn. LEXIS 561 (1966).

Where a plaintiff mistakenly seeks judicial review of a zoning amendment through a writ of certiorari, his petition may be regarded as an application for a declaratory judgment. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

12. —City Charter.

This statute did not work a repeal of a city charter provision making final the valuation of property for taxation when fixed by the city's board of equalization. W. J. Savage Co. v. Knoxville, 167 Tenn. 642, 72 S.W.2d 1057, 1933 Tenn. LEXIS 72 (1934); Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059, 1933 Tenn. LEXIS 73 (1934).

13. — —Civil Service Board.

Where the charter of the city of Nashville provided that the findings of the civil service and pension board on all questions of fact in the trial of charges preferred against civil service employees should be final and subject to review only for illegality or want of jurisdiction, such employees were not entitled to have their cases reviewed by statutory certiorari and their only remedy was common law certiorari and only where the board has acted illegally or without jurisdiction. Groomes v. Nashville, 176 Tenn. 391, 141 S.W.2d 899, 1939 Tenn. LEXIS 129 (1940).

14. Construction and Interpretation.

This law has no application where a state board or commission makes its determination without affording any hearing to the party affected. Knight v. State Board of Education, 200 F. Supp. 174, 1961 U.S. Dist. LEXIS 5416 (M.D. Tenn. 1961).

This section presupposes that a judicial or quasi-judicial proceeding is the subject of review and that a record of evidence, common in such proceedings, is available for certification to the reviewing court. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

The scope of T.C.A. § 27-9-101, the statute defining who may file petitions for common-law writ of certiorari is, in fact, the same as the scope of T.C.A. § 13-7-206(b); it empowers “anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of this state” to seek judicial review of the order or judgment using a common-law writ of certiorari. In addition to this statutory requirement, persons seeking judicial review of a board of zoning appeals decision must have been parties to the proceeding before the board. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 2004 Tenn. App. LEXIS 82 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 803 (Tenn. Sept. 13, 2004).

T.C.A. § 27-9-101, the statute defining who may file petitions for common-law writ of certiorari applies to both statutory and common-law writs of certiorari. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 2004 Tenn. App. LEXIS 82 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 803 (Tenn. Sept. 13, 2004).

Neither T.C.A. § 13-7-206(b) nor T.C.A. § 27-9-101, the statute defining who may file petitions for common-law writ of certiorari, expressly limits standing to appeal a metropolitan board of zoning appeals decision to residents or property owners of the area over which the local zoning board has jurisdiction; the absence of that sort of geographic limitation reflects an understanding that one local government's land use decisions may affect a neighboring local government. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 2004 Tenn. App. LEXIS 82 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 803 (Tenn. Sept. 13, 2004).

Dismissal of petition for common-law writ of certiorari was affirmed as the citizen did not have standing and he failed to demonstrate he had standing to petition under T.C.A. § 27-9-101, and his petition should have been dismissed on that ground; as he was not a party to the enforcement proceeding before the board, he did not have standing to seek review of the board's decision beyond its decision to uphold the ALJ's denial of his petition to intervene. Wood v. Metro. Nashville & Davidson County Gov't, 196 S.W.3d 152, 2005 Tenn. App. LEXIS 806 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 579 (2006).

15. —Application to Public Officers.

The remedy provided by this chapter affords an adequate remedy if the commissioner of insurance (now commissioner of commerce and insurance) in revoking an agent's license should act arbitrarily, fraudulently or illegally. Richardson v. Reese, 165 Tenn. 661, 57 S.W.2d 797, 1932 Tenn. LEXIS 101 (1933).

This section did not apply to removal of superintendent, assistant superintendent, and bookkeeper appointed by road commission by virtue of a private act since parties involved were not public officers. Francisco v. Breeden, 192 Tenn. 454, 241 S.W.2d 527, 1951 Tenn. LEXIS 287 (1951).

This section is not applicable to an action seeking review of actions of city clerk in refusing to submit recall petitions to election commissioners. Roberts v. Brown, 43 Tenn. App. 567, 310 S.W.2d 197, 1957 Tenn. App. LEXIS 137 (Tenn. Ct. App. 1957).

Action of Commissioner of Safety under former § 39-1953 (now § 39-11-109) in approving groups to solicit on behalf of police, judicial or safety associations is reviewable hereunder. Terrell v. State, 210 Tenn. 632, 361 S.W.2d 489, 1962 Tenn. LEXIS 322 (1962).

A county trustee is not an “aggrieved” party so as to entitle him, independently of the county, to maintain a petition to review the final action of the state board of equalization equalizing back-assessments made by the trustee. Roberts v. State Board of Equalization, 557 S.W.2d 502, 1977 Tenn. LEXIS 677 (Tenn. 1977).

Appeal of removal of commissioner under § 6-20-220(d) was properly by certiorari under this section and § 27-9-102, and not by appeal under §§ 27-5-101 and 27-5-102. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

When a town and development department (department) ordered removal of billboards and the town's board of zoning appeals (board), did not affirm that order, it was error to hold the town and department had no standing to appeal the board's decision because the town and department were aggrieved, as, inter alia, the board did not state the town's final position, since T.C.A. § 13-7-206(b) and Collierville, Tenn., Ordinances § 151.308(F)(5) let the town and department appeal to the board, so the town and department could also appeal the board's decision. Town of Collierville v. Town of Collierville Bd. of Zoning Appeals, — S.W.3d —, 2015 Tenn. App. LEXIS 203 (Tenn. Ct. App. Apr. 7, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 955 (Tenn. Nov. 24, 2015).

When a town and development department (department) ordered removal of billboards and the town's board of zoning appeals (board), did not affirm that order, it was error to hold the town and department had no standing to appeal the board's decision because the town and department were aggrieved, as, inter alia, (1) the town and department alleged the decision violated ordinances T.C.A. § 13-7-201(a)(1) allowed the town to adopt, which Collierville, Tenn., Ordinances § 151.182(A) (2014) directed the development department to enforce, and (2) T.C.A. § 13-7-208(a)(2) empowered the town to enforce such ordinances. Town of Collierville v. Town of Collierville Bd. of Zoning Appeals, — S.W.3d —, 2015 Tenn. App. LEXIS 203 (Tenn. Ct. App. Apr. 7, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 955 (Tenn. Nov. 24, 2015).

16. —Special Injury to Plaintiff.

Proceeding cannot be instituted attacking rate fixed by commission unless plaintiff has sustained a special injury. East Ridge v. Chattanooga, 191 Tenn. 551, 235 S.W.2d 30, 1950 Tenn. LEXIS 468 (1950).

Incorporated municipality cannot maintain an action under this section attacking rate fixed by commission for use and benefit of all of its citizens. East Ridge v. Chattanooga, 191 Tenn. 551, 235 S.W.2d 30, 1950 Tenn. LEXIS 468 (1950).

A party should allege facts demonstrating that he, she or it is adversely affected by the decision of the administrative agency in order to be classified as an aggrieved person and therefore to be entitled to judicial review; the aggrieved and directly affected person should be able to show a special interest in the final decision and that he, she or it is subject to a special injury not common to the public generally. League Cent. Credit Union v. Mottern, 660 S.W.2d 787, 1983 Tenn. App. LEXIS 623 (Tenn. Ct. App. 1983).

Allegation of possible potential competition did not make credit union person sufficiently aggrieved to bring appeal of order of commissioner of banking (now commissioner of financial institutions) allowing incorporation of other credit union. League Cent. Credit Union v. Mottern, 660 S.W.2d 787, 1983 Tenn. App. LEXIS 623 (Tenn. Ct. App. 1983).

Candidate was an aggrieved party to the local election commission's determination because the decision regarding the winning official's qualifications would determine whether the candidate was the only candidate in the election and the default winner, and thus, writ of certiorari was the proper method to challenge the commission's decision; as a result, the candidate's election challenge was time-barred. McFarland v. Pemberton, — S.W.3d —, 2015 Tenn. App. LEXIS 908 (Tenn. Ct. App. Nov. 16, 2015), aff'd, McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

17. —Petition by Foreign Corporation Not Admitted.

Where United Artists retained title to motion pictures shipped into the state for a local theater to exhibit and received a percentage of gross receipts from the sale of theater tickets, it was held that United Artists was doing business in the state in violation of § 48-908 (repealed) and a suit to review the action of the Memphis board of censors in banning a certain picture was not maintainable in the state courts. United Artists Corp. v. Board of Censors, 189 Tenn. 397, 225 S.W.2d 550, 1949 Tenn. LEXIS 446 (1949), cert. denied, 339 U.S. 952, 70 S. Ct. 839, 94 L. Ed. 1365, 1950 U.S. LEXIS 2031 (1950).

18. Limits of Review.

In proceeding for review of action of Nashville Civil Service Commission in dismissing employees' attack upon legality of appointment of members was an attack upon public officers exercising at least de facto, if not de jure, authority so that the acts of the commission were valid as to third parties and could not be controverted as a collateral issue to the determination of the validity of the charges forming the basis of the dismissals. Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557, 1963 Tenn. LEXIS 447 (1963).

Action of superintendent of banks in granting or withholding permission to establish branch bank was an administrative function and not a judicial function and procedural requirements of ch. 9 of this title must be read in this light and review limited to determining legal validity of action of superintendent of banks. Peoples Bank of Van Leer v. Bryan, 55 Tenn. App. 166, 397 S.W.2d 401, 1965 Tenn. App. LEXIS 290 (Tenn. Ct. App. 1965).

Application of T.C.A. § 27-9-101 in the discipline of lawyers is limited to chancery court review of the judgment of a hearing panel. Brown v. Board of Prof'l Responsibility, 29 S.W.3d 445, 2000 Tenn. LEXIS 223 (Tenn. 2000).

Planning Commission's recommendation did not constitute a final order or judgment so as to confer subject matter jurisdiction on the trial court and thus the trial court did not err in dismissing appellant's petition for writ of certiorari for lack of subject matter jurisdiction; the Commission's action was interlocutory because the Commission had no authority to actually order the rezoning, as the power to make a final decision rested with the Board of Mayor and Aldermen. Jack R. Owen Revocable Trust v. City of Germantown Tenn., — S.W.3d —, 2019 Tenn. App. LEXIS 257 (Tenn. Ct. App. May 23, 2019).

19. —Generally.

This section afforded no remedy where property had been unlawfully confiscated for privilege taxes without hearing, since there was no hearing and no final judgment or order to appeal from. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

Where Private Acts 1869, ch. 30 placed Memphis city schools under exclusive control and management of Memphis board of education the review by the court of a discharge of a teacher by the board was limited to determining whether board exceeded jurisdiction, failed to observe statutory requirements, or acted fraudulently. Hayslip v. Bondurant, 194 Tenn. 175, 250 S.W.2d 63, 1952 Tenn. LEXIS 364 (1952).

20. —Material Evidence.

Where board of examiners and chancellor concurred in holding on material evidence that applicant for engineer's license was guilty of false swearing in that he stated that he had attended engineering school for four years when as a matter of fact he only attended one year, the scope of review on appeal of denial of petition for certiorari was restricted to see if there was material evidence to support action of commission, and since petitioner admitted there was material evidence of false swearing the action of board and the chancellor was affirmed. Simm v. Dougherty, 186 Tenn. 356, 210 S.W.2d 486, 1948 Tenn. LEXIS 557 (1948).

Licensing board's decision to suspend a club's license for 31 days for an entertainer's inappropriate behavior was supported by material evidence where the entertainer was engaged in the regular, typical operations of the club by entertaining a customer in a VIP room, and activities in that room were clearly related to the presentation or exhibitions of specified sexual activities or anatomical areas on stage in the club. Howell v. Metro. Sexually Oriented Bus. Licensing Bd., 466 S.W.3d 88, 2014 Tenn. App. LEXIS 721 (Tenn. Ct. App. Nov. 5, 2014), appeal dismissed, — S.W.3d —, 2015 Tenn. LEXIS 187 (Tenn. Mar. 3, 2015).

21. —After Board Hearing.

These sections only apply to reviews after a hearing before a board or commission and do not apply to a procedure where no provision is made for such a hearing before such a board or commission. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

22. —Modification of Order.

Chancellor in reviewing order of board of dentistry revoking license of dentist was entitled to modify order of board by providing that order of suspension should be limited to 30 days. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

23. —Hearing.

Where a dentist's license had been revoked by the state dental board, and the case had been carried to the chancery court by writ of certiorari, the chancery court properly tried the case de novo. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

Petitioner in certiorari proceeding seeking review of decision of board of commissioners denying a permit to sell beer is restricted to evidence in the record before the board and is not entitled to present new evidence. Owings v. Wasson, 188 Tenn. 416, 219 S.W.2d 908, 1949 Tenn. LEXIS 354 (1949).

24. Rights of Review.

Where notice of a proposed zoning reclassification to allow a shooting range involved ten acres, but the adopted resolution stated ninety acres, the ordinance was void ab initio and the statute of limitations was no defense because: (1) The resolution qualified as a zoning amendment which required specific procedures; (2) The county legislative body had no jurisdiction to act on the proposed amendment since the alteration was so substantial that there should have been a resubmission of the proposed amendment to the planning commission; and (3) The record did not establish the requisite public or private reliance for an exception to the application of the void ab initio doctrine. Edwards v. Allen, 216 S.W.3d 278, 2007 Tenn. LEXIS 144 (Tenn. 2007).

25. —Pension Grants.

Action of chancellor in entertaining a petition for certiorari to review the refusal of the pension board and the city council of the city of Knoxville to allow the widow of a city employee a pension under the provisions of Private Acts 1935, ch. 540 as amended by Private Acts 1939, ch. 454 was authorized under this section of the Code. Collins v. Knoxville, 180 Tenn. 483, 176 S.W.2d 808, 1944 Tenn. LEXIS 310 (1944).

26. —Revenue Cases.

Section 27-9-111 by implication negatives the idea that the writ of certiorari dealt with in § 27-9-101 et seq. was intended to apply to revenue cases since the language of § 27-9-111 exempts revenue suits from its provisions and hence seems to contemplate revenue suits as suits apart from the provisions of these sections of the Code. Fort v. Dixie Oil Co., 170 Tenn. 183, 93 S.W.2d 1260, 1935 Tenn. LEXIS 124 (1936), rehearing denied, 170 Tenn. 464, 95 S.W.2d 931, 1936 Tenn. LEXIS 16 (1936); Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

27. —Injunctive Relief.

Where injunction was prayed, it was ruled that this chapter afforded an adequate remedy against illegal action. Richardson v. Reese, 165 Tenn. 661, 57 S.W.2d 797, 1932 Tenn. LEXIS 101 (1933).

28. —Change of Zoning Regulation.

Since the authority of the city commission to approve any change of zoning regulations and ordinances is made final and conclusive the right and scope of review is limited to that provided by this chapter. Brooks v. Memphis, 192 Tenn. 371, 241 S.W.2d 432, 1951 Tenn. LEXIS 415 (1951).

Chancery court granted a private school's application for a writ of common law certiorari to review the decision of the board of fire and building code appeals which affirmed the revocation of the school's building permits under the pending ordinance doctrine. Harding Acad. v. Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2006 Tenn. App. LEXIS 177 (Tenn. Ct. App. Mar. 14, 2006), aff'd, 222 S.W.3d 359, 2007 Tenn. LEXIS 459 (Tenn. 2007).

The remedy of certiorari provided by T.C.A. §§ 27-8-101, 27-9-101–27-9-113, rather than a declaratory judgment action, T.C.A. §§ 29-14-101 through 29-14-113, will continue to be the proper remedy for one who seeks to overturn the determination of a Board of Zoning Appeals as provided by T.C.A. § 13-7-106 et seq. and T.C.A. § 13-7-205 et seq.Steppach v. Thomas, 346 S.W.3d 488, 2011 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 28, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 736 (Tenn. July 15, 2011).

Local government had standing to seek T.C.A. § 27-9-101 certiorari review of a Board of Zoning Appeals' (Board) decision because (1) the local government said the decision interfered with the ability to meet duties to enforce billboard distance requirements, showing aggrievement; (2) a special interest showed a causal link between the decision and the alleged injury; and (3) T.C.A. §§ 27-8-101 and 27-9-101 certiorari was the proper vehicle to review the Board's decisions. Metro. Gov't v. Bd. of Zoning Appeals of Nashville & Davidson County, — S.W.3d —, 2014 Tenn. App. LEXIS 545 (Tenn. Ct. App. Sept. 3, 2014), aff'd, Metro. Gov't of Nashville & Davidson Cnty. v. Bd. of Zoning Appeals of Nashville & Davidson Cnty., 477 S.W.3d 750, 2015 Tenn. LEXIS 1081 (Tenn. 2015).

29. —Board of Claims for Injured Persons.

This chapter does not so apply as to compel the state to go into court in a proceeding to test the final determination of the board of claims created with power to compensate those injured by negligence in highway work. Such a claimant is not entitled to certiorari to review such adverse finding. Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953, 1932 Tenn. LEXIS 38 (1932).

30. —Tax Distress Warrant.

This section did not give a chancellor authority to grant a petition for certiorari and supersedeas to stay the levy of a distress warrant issued by the commissioner of finance and taxation. Fort v. Dixie Oil Co., 170 Tenn. 183, 93 S.W.2d 1260, 1935 Tenn. LEXIS 124 (1936), rehearing denied, 170 Tenn. 464, 95 S.W.2d 931, 1936 Tenn. LEXIS 16 (1936).

31. —Licenses.

Review of any action of State Board for licensing general contractors on question of whether applicants for license had been dealt with arbitrarily and illegally should come under the statutory certiorari provided herein. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

32. Procedure and Practice.

Because an inmate was not entitled to multiple release eligibility dates and consideration for custodial parole, his petition alleging that the Tennessee Board of Probation and Parole and Board officials deprived him of the privilege to be heard for custodial parole failed to state a claim on which relief could be granted; therefore, the trial court properly granted the motions of the Board and officials to dismiss the inmate's petition for common law writ of certiorari pursuant to T.C.A. §§ 27-8-101 and 27-9-101. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

Trial court did not err in dismissing a candidate's election challenge as an untimely review of a quasi-judicial determination because the candidate filed his claim more than sixty days after the decision of the local election commission; the commission had the authority to hold a hearing and grant a final determination regarding the elected official's qualifications because the hearing and the vote by the commission met the characteristics of a quasi-judicial act. McFarland v. Pemberton, — S.W.3d —, 2015 Tenn. App. LEXIS 908 (Tenn. Ct. App. Nov. 16, 2015), aff'd, McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

Denial of a motion to dismiss an action regarding a petition to hold a referendum was appropriate because the matter was not an election contest as the case did not involve allegations of illegal ballots or fraud. Furthermore, to require the petitioners to file a new lawsuit to litigate once again what had already been decided by the election commission and the circuit court, or to hold that the petitioners had failed to file such a lawsuit, would have been an injustice and not in the public interest. FOP v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2019 Tenn. App. LEXIS 15 (Tenn. Ct. App. Jan. 11, 2019).

Individuals who petitioned for a referendum to create a police oversight board and a police organization which participated in the proceedings before the election commission had standing because they were undoubtedly affected by the agency's decision to place the referendum on the ballot in a manner singularly different from the effect on the general public. FOP v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2019 Tenn. App. LEXIS 15 (Tenn. Ct. App. Jan. 11, 2019).

33. —Jurisdiction.

The situs of the lower tribunal determines appellate jurisdiction and not the residence of the parties; thus the situs of the state board of elections being in Davidson County, the circuit court of Shelby County has no jurisdiction to review any action of the board. McKee v. Board of Elections, 173 Tenn. 269, 117 S.W.2d 752, 1938 Tenn. LEXIS 16 (1938).

Official residence of commissioner of insurance and banking (now commissioner of commerce and insurance) was at the capitol in Nashville, Davidson County, and Chancery Court of Shelby County was without jurisdiction to issue statutory writ of certiorari and supersedeas for review of commissioner's order for industrial loan and thrift company to cease and desist from statutory violations. Delta Loan & Finance Co. v. Long, 206 Tenn. 709, 336 S.W.2d 5, 1960 Tenn. LEXIS 401 (1960), superseded by statute as stated in, Johnson v. McReynolds, — S.W.2d —, 1989 Tenn. App. LEXIS 184 (Tenn. Ct. App. Mar. 15, 1989).

The revisory power of a higher court is limited to correction of errors of tribunals located within the territorial jurisdiction of the appellate body. Delta Loan & Finance Co. v. Long, 206 Tenn. 709, 336 S.W.2d 5, 1960 Tenn. LEXIS 401 (1960), superseded by statute as stated in, Johnson v. McReynolds, — S.W.2d —, 1989 Tenn. App. LEXIS 184 (Tenn. Ct. App. Mar. 15, 1989).

Trial court properly dismissed an inmate's petition under T.C.A. §§ 27-8-101 and 27-9-101 for common law writ of certiorari against the Tennessee Department of Correction's (TDOC) and TDOC officials because the inmate failed to seek a declaratory order from TDOC as required by the Uniform Administrative Procedures Act, T.C.A. § 4-5-225(b); therefore, the trial court lacked subject matter jurisdiction of the claims against TDOC and TDOC officials. Stewart v. Schofield, 368 S.W.3d 457, 2012 Tenn. LEXIS 376 (Tenn. May 25, 2012).

Local election commission's determination was a final one because the commission applied the facts to state law and then voted; based on the results of that vote, the commission certified the ballots later that same day without any other executive or legislative action or approval being required. McFarland v. Pemberton, — S.W.3d —, 2015 Tenn. App. LEXIS 908 (Tenn. Ct. App. Nov. 16, 2015), aff'd, McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

Chancery court did not have subject matter jurisdiction to review a county retirement board's decision to deny a pension benefit to an applicant, who was a former county employee, because the applicant was required to have filed a sworn petition for a writ of certiorari within sixty days from the entry of the board's order or judgment. However, the applicant submitted a petition to the chancery court over eleven months after receiving notice from the board of the denial of a pension benefit. Hall v. Shelby Cty. Ret. Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 533 (Tenn. Ct. App. Sept. 11, 2018).

34. —Costs.

In proceedings under this section to review the refusal of the pension board and the city council of the city of Knoxville to allow the widow of a city employee a pension the chancellor properly taxed the city with the costs upon awarding of the pension to the petitioner. Collins v. Knoxville, 180 Tenn. 483, 176 S.W.2d 808, 1944 Tenn. LEXIS 310 (1944).

35. —Review Procedure.

An appeal from a decision of the circuit court reviewing public utility order was subject to dismissal by the Court of Appeals for failure to file and secure the action of the trial judge on a motion for a new trial, upon such grounds as, if overruled, would be the assignments of error in the Court of Appeals. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 193 Tenn. 284, 246 S.W.2d 15, 1951 Tenn. LEXIS 356 (1951).

Whether the certiorari was direct to the railroad and public utilities commission or whether it was to the state board of equalization after unsuccessful appeal from adverse action of the commission, the statutes which permitted the courts to review the action of those administrative bodies were the same. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 193 Tenn. 284, 246 S.W.2d 15, 1951 Tenn. LEXIS 356 (1951).

On appeal from decree of chancery court in common law certiorari proceedings wherein chancellor affirmed action of city Civil Service Commission in dismissing city employee, appeal was dismissed by Court of Appeals where no motion for new trial was made. Rhem v. Civil Service Com., 49 Tenn. App. 44, 350 S.W.2d 292, 1961 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1961).

When an attorney sought review of the Board of Professional Responsibility's recommendation that he be suspended from the practice of law for six months, by means of a petition for writ of certiorari, the trial court properly dismissed his petition for his failure to file a complete transcript of the proceedings before the Board because (1) Tenn. Sup. Ct. R. 9, § 1.3 provided for review of the Board's recommendation in the manner provided by T.C.A. § 27-9-101 et seq., except as otherwise provided; (2) T.C.A. § 27-9-109(a) provided that upon a trial court granting a writ of certiorari to review the decision of a board or commission, the board or commission was to forward a complete transcript of the proceedings; but (3) Tenn. Sup. Ct. R. 9, § 23.1 “otherwise provided” that the attorney and not the Board had the burden of filing the transcript. Henderson v. Bd. of Prof'l Responsibility, 125 S.W.3d 405, 2003 Tenn. LEXIS 1016 (Tenn. 2003).

Trial court erred in dismissing an owner's petition for writ of certiorari and upholding its de facto denial of the owner's application for approval for the construction of a surface parking lot as a use permitted on review because the city council was required by its Code to apply existing law in a de novo review hearing and city council's failure to so was an abdication of its responsibility to the trial court. Royal Props. v. City of Knoxville, 490 S.W.3d 1, 2015 Tenn. App. LEXIS 676 (Tenn. Ct. App. Aug. 25, 2015), appeal denied, Roy Al Props. v. City of Knoxville, — S.W.3d —, 2016 Tenn. LEXIS 13 (Tenn. Jan. 15, 2016).

Review of the termination of a firefighter for a city was through the common law writ of certiorari because there was no law that created the procedures for the city. Keller v. Casteel, — S.W.3d —, 2019 Tenn. App. LEXIS 39 (Tenn. Ct. App. Jan. 28, 2019).

36. Civil Rights Actions.

Even if the remedies provided in this chapter are available to a plaintiff, there is no requirement that a plaintiff exhaust administrative or state remedies prior to filing an action under 42 U.S.C. § 1983. Henderson v. Bentley, 500 F. Supp. 62, 1980 U.S. Dist. LEXIS 14325 (E.D. Tenn. 1980), aff'd without opinion, 698 F.2d 1219, 1982 U.S. App. LEXIS 12408 (6th Cir. Tenn. 1982).

37. Evidence.

Denial by a board of zoning appeals of a developer's use on review application to construct a shopping center development was arbitrary and invalid because none of the project's opponents provided a factual basis as to why they believed the development would make flooding worse and, as such, there was no material evidence to support the board's decision; the trial court erred in dismissing the developer's petition for writ of certiorari. 411 P'ship v. Knox County, 372 S.W.3d 582, 2011 Tenn. App. LEXIS 631 (Tenn. Ct. App. Nov. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 272 (Tenn. Apr. 11, 2012).

38. Standard of Review.

Trial court did not abuse its discretion in denying a petition for a writ of certiorari because the city council applied the appropriate standard of review and a funeral home was entitled to a building permit as the addition of a crematory was an appropriate accessory use to the existing funeral home. Scott v. City of Knoxville, — S.W.3d —, 2015 Tenn. App. LEXIS 444 (Tenn. Ct. App. June 8, 2015).

NOTES TO DECISIONS

1. Effect on Procedure.

This section and § 27-9-103 do not destroy the distinction between the common law writ of certiorari and the statutory writ and do not operate to enlarge the scope of review of either form of writ. Real Estate Com. v. McLemore, 202 Tenn. 540, 306 S.W.2d 683, 1957 Tenn. LEXIS 437 (1957).

This section merely fixes permissible venue for review of boards and commissions and does not have the effect of giving the trial court of any county wherein the party affected may have residence subject matter jurisdiction over the review of a board or commission exclusively located elsewhere. Tennessee Real Estate Com. v. Potts, 221 Tenn. 585, 428 S.W.2d 794, 1968 Tenn. LEXIS 488 (1968).

Private act enacted in 1953 which provided for appeal from action of Greeneville Civil Service Board to chancery court within 10 days of entry of an order did not have the effect of repealing existing provisions of §§ 27-9-102 and 27-9-114 which provided for review of actions involving public employees by common writ of certiorari within 60 days, and the Code provisions governed review procedure. Wilson v. Greeneville, 509 S.W.2d 495, 1973 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1973).

Appeal by suspended policeman to chancery court from action of Greeneville Civil Service Board in accordance with invalid provision of private act relating to Town of Greeneville did not constitute substantial compliance with the provisions of §§ 27-9-102 and 27-9-114 since § 27-9-114 specifically prohibits the entertaining of a proceeding in the nature of an appeal. Wilson v. Greeneville, 509 S.W.2d 495, 1973 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1973).

2. Time for Filing Petition.

Petition for certiorari to review action of board of zoning appeals was filed in time where filed within sixty days after issuance of order by board even though such petition was filed more than sixty days after special meeting of board where board indicated that certain action was to be taken. Carter v. Board of Zoning Appeals, 214 Tenn. 42, 377 S.W.2d 914, 1964 Tenn. LEXIS 446 (1964).

The legislature has the authority to place reasonable statutory limitations on the time within which certiorari may issue. Fairhaven Corp. v. Tennessee Health Facilities Com., 566 S.W.2d 885, 1976 Tenn. App. LEXIS 270 (Tenn. Ct. App. 1976).

Review of an airport security officer's revocation of commission for one year was not reviewable under former § 8-30-327 (repealed), but was by common law certiorari under § 27-9-114 and had to be filed within 60 days from entry of the order of judgment under this section. Wheeler v. Memphis, 685 S.W.2d 4, 1984 Tenn. App. LEXIS 3292 (Tenn. Ct. App. 1984).

Where a prisoner failed to file his petition with the chancery court for review of the board of parole's decision within the 60-day time limit of this section, the chancellor lacked subject matter jurisdiction and was correct in dismissing the petition. Thandiwe v. Traughber, 909 S.W.2d 802, 1994 Tenn. App. LEXIS 638 (Tenn. Ct. App. 1994).

A petition for writ of certiorari against a prison warden and other officials seeking review of actions by employees of the Tennessee department of correction was not timely where it filed more than 60 days after the actions of the disciplinary board were affirmed by the commissioner of correction. A'La v. Tennessee Dep't of Correction, 914 S.W.2d 914, 1995 Tenn. App. LEXIS 596 (Tenn. Ct. App. 1995).

An inmate's certiorari petition, which was filed within 60 days of the inmate's letter to the chairman of the parole board, was timely, because the chairman's failure to respond to the letter would be considered a denial of the requests contained in the letter. Hickman v. Tenn. Bd. of Paroles, 78 S.W.3d 285, 2001 Tenn. App. LEXIS 773 (Tenn. Ct. App. 2001).

Since more than 60 days had elapsed, and the fatal jurisdictional defect was evidenced on the face of the complaint, the motion to dismiss was well taken; the 42 U.S.C. § 1983 case was not filed within the 60-day limitations period, due process was not implicated because the only discipline was a sentence of 30 days solitary confinement, and the saving statutes were not effective against the state of Tennessee. Gore v. Tenn. Dep't of Corr., 132 S.W.3d 369, 2003 Tenn. App. LEXIS 713 (Tenn. Ct. App. 2003).

Inmate did not present sufficient evidence to demonstrate his compliance with Tenn. R. Civ. P. 5.06 where he failed to set forth in his motion for a new trial or in his brief filed on appeal sufficient proof to show his compliance with Tenn. R. Civ. P. 5.06; without such proof, it was clear that the inmate filed his petition well beyond the sixty-day limit provided for in T.C.A. § 27-9-102. Jackson v. Tenn. Dep't of Corr., 240 S.W.3d 241, 2006 Tenn. App. LEXIS 356 (Tenn. Ct. App. May 31, 2006).

Summary judgment dismissal of a complaint as it pertained to the board's ten-day suspension of the teacher's employment was proper because the complaint of March 9, 2007 was obviously filed well over 60 days past the teacher's March 2006 suspension and was therefore time-barred under T.C.A. § 27-9-102; while the teacher would have been entitled to pursue his complaint as to the ten-day suspension by filing a petition for writ of certiorari, he was allotted a limited amount of time within which to do so under T.C.A. § 27-9-102. Bailey v. Blount County Bd. of Educ., — S.W.3d —, 2008 Tenn. App. LEXIS 503 (Tenn. Ct. App. Aug. 27, 2008), aff'd in part, rev'd in part, 303 S.W.3d 216, 2010 Tenn. LEXIS 47 (Tenn. 2010).

Although the trial court erred by denying an attorney's motion for a voluntary nonsuit when Tenn. R. Civ. P. 41.01(1) applied to the appeal of hearing panel judgments, the sixty-day period within which the attorney was permitted to file a petition for writ of certiorari from the panel's order of disbarment, T.C.A. § 27-9-102 and Tenn. Sup. Ct. R. 9, § 3.1, had long since passed, and principles of sovereign immunity precluded the application of the one-year savings statute, T.C.A. § 28-1-105(a); the Board of Professional Responsibility of the Supreme Court of Tennessee (BPR) was an arm of the State, and § 28-1-105(a) does not “save” a claim against the BPR when the statute of limitations has otherwise run. Rayburn v. Bd. of Prof'l Responsibility of the Supreme Court, 300 S.W.3d 654, 2009 Tenn. LEXIS 741 (Tenn. Dec. 1, 2009).

Summary judgment was properly granted to defendants in a declaratory judgment case as the only injury complained of related to the denial of plaintiff's 2004 and 2005 billboard permit applications; the denial of the permits could be redressed only in an appeal seeking a reversal and a declaration that the underlying ordinances were invalid, which was time-barred under T.C.A. § 27-9-102. Thomas v. Shelby County, 416 S.W.3d 389, 2011 Tenn. App. LEXIS 439 (Tenn. Ct. App. Aug. 12, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1210 (Tenn. Dec. 13, 2011).

Trial court did not err in dismissing a candidate's election challenge as an untimely review of a quasi-judicial determination because the candidate filed his claim more than sixty days after the decision of the local election commission; the commission had the authority to hold a hearing and grant a final determination regarding the elected official's qualifications because the hearing and the vote by the commission met the characteristics of a quasi-judicial act. McFarland v. Pemberton, — S.W.3d —, 2015 Tenn. App. LEXIS 908 (Tenn. Ct. App. Nov. 16, 2015), aff'd, McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

Candidate was an aggrieved party to the local election commission's determination because the decision regarding the winning official's qualifications would determine whether the candidate was the only candidate in the election and the default winner, and thus, writ of certiorari was the proper method to challenge the commission's decision; as a result, the candidate's election challenge was time-barred. McFarland v. Pemberton, — S.W.3d —, 2015 Tenn. App. LEXIS 908 (Tenn. Ct. App. Nov. 16, 2015), aff'd, McFarland v. Pemberton, 530 S.W.3d 76, 2017 Tenn. LEXIS 561 (Tenn. Sept. 20, 2017).

Chancery court properly dismissed, for lack of subject matter jurisdiction, a petition for certiorari filed by organizations representing property owners in close proximity to a proposed subdivision because the petition was untimely where it was filed more than 60 days after the preliminary plat was approved, the organizations'  core complaints all related to and originated with approval of the subdivision plan, which occurred at preliminary plat approval, and the organizations did not allege that the final plat for the subdivision failed to conform substantially to the approved preliminary plat. Save Rural Franklin v. Williamson Cnty. Gov't, — S.W.3d —, 2016 Tenn. App. LEXIS 633 (Tenn. Ct. App. Aug. 26, 2016).

In a case arising out of the alleged wrongful seizure of plaintiff's personal property, mainly cars and trailers, which were removed from his residence, the trial court correctly determined that the complaint was time-barred by the statute of limitations for writs pertaining to the decisions of administrative bodies. Olivier v. City of Clarksville, — S.W.3d —, 2017 Tenn. App. LEXIS 490 (Tenn. Ct. App. July 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 776 (Tenn. Nov. 16, 2017).

Trial court properly dismissed an inmate's petition for writ of certiorari because it was untimely; the inmate's filing of an appeal or his letter had no bearing on the running of the statute of limitations because the inmate had 60 days to file a petition from the entry of the judgment appealed from, and thus, his petition regarding an incident was untimely filed. Smith v. Shelby Cty. Sheriff's Dep't, — S.W.3d —, 2018 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 25, 2018).

Trial court properly dismissed an inmate's petition for writ of certiorari because it was untimely; an order regarding an incident was not included in the record on appeal, and assuming the inmate was adjudged guilty on, at the latest, February 13, for a second incident, he still failed to file a petition within 60 days of the entry of the judgment. Smith v. Shelby Cty. Sheriff's Dep't, — S.W.3d —, 2018 Tenn. App. LEXIS 212 (Tenn. Ct. App. Apr. 25, 2018).

3. Jurisdiction of Courts.

Official residence and situs of Tennessee real estate commission is fixed in Davidson County and action of commission in revoking real estate broker's and salesman's licenses was reviewable only in courts of that county. Tennessee Real Estate Com. v. Potts, 221 Tenn. 585, 428 S.W.2d 794, 1968 Tenn. LEXIS 488 (1968).

Action of the board of zoning appeals was administrative, and therefore the proper remedy for the landowners was the common law writ of certiorari; the landowners did not seek judicial review of the board's decision by filing a petition for writ of certiorari within 60 days after the board's action pursuant to T.C.A. § 27-9-102 thus depriving the trial court of subject matter jurisdiction. Campbell v. Bedford County Reg'l Planning Comm'n, — S.W.3d —, 2004 Tenn. App. LEXIS 189 (Tenn. Ct. App. Mar. 29, 2004).

Petitioner's habeas petition was properly dismissed because actions of the parole board are reviewable by the common law writ of certiorari, and petitioner had not argued that his sentence had expired or void. Duncan v. State Parole Bd., — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Oct. 25, 2004).

Trial court did not have jurisdiction to grant an extension of time to comply with the verification requirement of T.C.A. § 27-8-106 for a writ of certiorari, because petitioner's motion to amend to comply with that requirement was made beyond the 60-day period in which the petition had to be filed and verified; the appellate court was thus also without jurisdiction and dismissed petitioner's appeal. Blair v. Tenn. Bd. of Prob. & Parole, 246 S.W.3d 38, 2007 Tenn. App. LEXIS 483 (Tenn. Ct. App. July 27, 2007).

Chancery court was without subject matter jurisdiction to review a zoning board's actions in denying a permit because the applicants did not file a petition for a writ of certiorari that complied with the statutory requirements within sixty days as their amended petition, like the first petition, contained a representation that the matters set forth in the petition were true and correct, but it did not reflect that it was sworn to before the clerk of the circuit court, the judge, any judge of the court of general sessions, or a notary public. Hirt v. Metro. Bd. of Zoning Appeals, — S.W.3d —, 2016 Tenn. App. LEXIS 958 (Tenn. Ct. App. Dec. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 241 (Tenn. Apr. 13, 2017).

Developer was entitled to the commission's approval as long as the final site plan complied with the master development plan, and thus the clock for challenging the commission's non-discretionary decision started to run on April 14, 2016, when the commission entered the minutes; as petitioners filed their writ of certiorari outside the 60-day deadline under T.C.A. § 27-9-102, the trial court did not have subject matter jurisdiction to review the decision. Metz v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2018 Tenn. App. LEXIS 92 (Tenn. Ct. App. Feb. 16, 2018).

Petition challenging the April 28, 2016 decision was dismissed as untimely under T.C.A. § 27-9-102 because no petition was filed within 60 days of the entry of the minutes; the minutes were entered on May 12, 2016, and the petition was not filed until December 27, 2016, and thus the trial court correctly determined that it was without subject matter jurisdiction to hear the appeal. Metz v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2018 Tenn. App. LEXIS 92 (Tenn. Ct. App. Feb. 16, 2018).

Chancery court did not have subject matter jurisdiction to review a county retirement board's decision to deny a pension benefit to an applicant, who was a former county employee, because the applicant was required to have filed a sworn petition for a writ of certiorari within sixty days from the entry of the board's order or judgment. However, the applicant submitted a petition to the chancery court over eleven months after receiving notice from the board of the denial of a pension benefit. Hall v. Shelby Cty. Ret. Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 533 (Tenn. Ct. App. Sept. 11, 2018).

4. Presumptions.

This section plainly presupposes that a judicial or quasi-judicial proceeding is the subject of review and that a record of evidence, common in such proceedings, is available for certification to the reviewing court. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

5. Removal of Public Officers.

Appeal of removal of commissioner under § 6-20-220(d) was properly by certiorari under § 27-9-101 and this section, and not by appeal under §§ 27-5-101 and 27-5-102. Davison v. Carr, 659 S.W.2d 361, 1983 Tenn. LEXIS 731 (Tenn. 1983).

6. Void Ab Initio Doctrine.

Where notice of a proposed zoning reclassification to allow a shooting range involved ten acres, but the adopted resolution stated ninety acres, the ordinance was void ab initio and the statute of limitations was no defense because: (1) The resolution qualified as a zoning amendment which required specific procedures; (2) The county legislative body had no jurisdiction to act on the proposed amendment since the alteration was so substantial that there should have been a resubmission of the proposed amendment to the planning commission; and (3) The record did not establish the requisite public or private reliance for an exception to the application of the void ab initio doctrine. Edwards v. Allen, 216 S.W.3d 278, 2007 Tenn. LEXIS 144 (Tenn. 2007).

7. Res Judicata.

Prior board of zoning appeals decision was res judicata with respect to a property owner's action seeking recognition that his property had a nonconforming use as a rock quarry because the issues in both cases were identical, the first adjudication resulted in a judgment on the merits, both involved the owner and the county zoning authorities, and the owner had the opportunity to present evidence during two hearings. Finley v. Marshall Cnty., — S.W.3d —, 2016 Tenn. App. LEXIS 28 (Tenn. Ct. App. Jan. 20, 2015).

Property owner was asserting a collateral attack, which was generally not permitted, but its challenged the Metropolitan Historic Zoning Commission's jurisdiction, which was an exception to the collateral attack rule; therefore, the owner's collateral challenge on jurisdictional grounds was permitted. Metro. Gov't of Nashville v. RSF Investors, LLC, — S.W.3d —, 2017 Tenn. App. LEXIS 482 (Tenn. Ct. App. July 14, 2017), appeal denied, Metro. Gov't of Nashville & Davidson Cty. v. RSF Inv'rs, LLC, — S.W.3d —, 2017 Tenn. LEXIS 762 (Tenn. Nov. 16, 2017).

NOTES TO DECISIONS

1. Effect on Procedure.

This section and § 27-9-102 do not destroy the distinction between the common law writ of certiorari and the statutory writ and do not operate to enlarge the scope of review of either form of writ. Real Estate Com. v. McLemore, 202 Tenn. 540, 306 S.W.2d 683, 1957 Tenn. LEXIS 437 (1957).

A circuit court has concurrent jurisdiction with the chancery court over petitions of certiorari concerning an order or judgment of a board or commission operating under state law. FOP v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2019 Tenn. App. LEXIS 15 (Tenn. Ct. App. Jan. 11, 2019).

NOTES TO DECISIONS

1. Party Not Required.

Landowner who had transferred his property to another was not required to continue to participate in a neighboring landowner's challenge to a city's development decision, because the new owner had been joined as a party. Steppach v. Thomas, 346 S.W.3d 488, 2011 Tenn. App. LEXIS 91 (Tenn. Ct. App. Feb. 28, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 736 (Tenn. July 15, 2011).

2. Improper Party.

Trial court properly dismissed for failure to state a claim an inmate's petition for a writ of certiorari against the employees of a private prison contractor because they had no power to take disciplinary actions; although the disciplinary board was comprised of the employees, who made recommendations for the inmate's punishment, the recommendations were reviewed and approved by the Commissioner of Corrections designee. Walton v. Tenn. Dep't of Corr., — S.W.3d —, 2016 Tenn. App. LEXIS 350 (Tenn. Ct. App. May 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 773 (Tenn. Oct. 21, 2016).

3. Time Limits.

In order to comply with T.C.A. § 27-9-104, appellant was required to name the board of zoning appeals or its members in its petition for writ of certiorari. Because appellant failed to do so within sixty days of the decision being challenged, appellant failed to perfect the appeal within the jurisdictional window. Roland Digital Media, Inc. v. City of Livingston, — S.W.3d —, 2019 Tenn. App. LEXIS 7 (Tenn. Ct. App. Jan. 7, 2019).

NOTES TO DECISIONS

1. Use of Supersedeas.

Our statutes recognize the writ of supersedeas as an established remedy, but give no general definition of the writ, nor description of its office. The cases in which a supersedeas is provided for or mentioned in the Code are cases in which it is given as ancillary to the writ of error and writ of certiorari, and in which its office is merely to stay proceedings under the judgment or decree while the cause is pending in the appellate court. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

NOTES TO DECISIONS

1. Trial De Novo on Review.

A dentist whose license has been revoked by the dental board is entitled to a trial de novo upon a writ of certiorari of the chancery court, as against the contention that the Code contemplates only a review of the record before the board in view of this section requiring transcript of board's proceedings to be forwarded to the court. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

2. Record of Evidence.

This section plainly presupposes that a judicial or quasi-judicial proceeding is the subject of review and that a record of evidence, common in such proceedings, is available for certification to the reviewing court. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

When an attorney sought review of the Board of Professional Responsibility's recommendation that he be suspended from the practice of law for six months, by means of a petition for writ of certiorari, the trial court properly dismissed his petition for his failure to file a complete transcript of the proceedings before the Board because: (1) Tenn. Sup. Ct. R. 9, § 1.3 provided for review of the Board's recommendation in the manner provided by T.C.A. § 27-9-101 et seq., except as otherwise provided; (2) T.C.A. § 27-9-109(a) provided that upon a trial court granting a writ of certiorari to review the decision of a board or commission, the board or commission was to forward a complete transcript of the proceedings; but (3) Tenn. Sup. Ct. R. 9, § 23.1 “otherwise provided” that the attorney and not the Board had the burden of filing the transcript. Henderson v. Bd. of Prof'l Responsibility, 125 S.W.3d 405, 2003 Tenn. LEXIS 1016 (Tenn. 2003).

NOTES TO DECISIONS

1. Time for Answer.

Holding a motion to dismiss under advisement beyond 30 day period did not bar answer to merits, since action of court amounted to an implied extension of time to answer to the merits. Roberts v. Knoxville Transit Lines, 36 Tenn. App. 595, 259 S.W.2d 883, 1952 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1952).

2. Demurrer.

Demurrer not disposed of prior to hearing on merits was deemed waived even though the statute required demurrer to be incorporated in the answer. Cantrell v. De Kalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480, 1964 Tenn. LEXIS 423 (1964).

NOTES TO DECISIONS

1. Construction and Interpretation.

Pursuant to the standard set forth by the United States Supreme Court in City of Littleton v. Z. J. Gifts D-4 , L.L.C., 541 U.S. 774, 124 S. Ct. 2219, 159 L. Ed. 2d 84, 2004 U.S. LEXIS 4026 (2004) the expedited review provision under T.C.A. § 27-9-111(e) complies with U.S. Const. amend. 1. Déj` Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 466 F.3d 391, 2006 FED App. 375A, 2006 U.S. App. LEXIS 25426 (6th Cir. Tenn. 2006), cert. denied, 549 U.S. 1339, 127 S. Ct. 2088, 167 L. Ed. 2d 765, 2007 U.S. LEXIS 3969 (2007).

2. —Scope of Certiorari.

The scope of the writ of certiorari was not enlarged so as to enlarge the issues which the petition presents. If the petition be for the common law writ its allegations as to illegality or usurpation of authority may be supported or refuted by additional evidence. If the writ be the statutory writ in lieu of appeal, the hearing is de novo. Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059, 1933 Tenn. LEXIS 73 (1934).

This statute does not overthrow the well established practice by subjecting the merits of every action by statutory commission or board to judicial review; thus extending judicial power and the domain of the executive powers of government. Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059, 1933 Tenn. LEXIS 73 (1934).

Railroad and public utility commission had right, in exercise of administrative function to grant railroad permission to discontinue certain trains on ground that direct operating costs had exceeded aggregate gross revenue by more than 30%, and to refuse to include in direct cost of operation certain items of expense claimed by railroad, and chancellor had no authority, on certiorari, to consider these items. Louisville & N. R. Co. v. Fowler, 197 Tenn. 266, 271 S.W.2d 188, 1954 Tenn. LEXIS 480 (1954).

Action of superintendent of banks in granting or withholding permission to establish a branch bank was an administrative function and not a judicial function and procedural requirements of this chapter had to be read in this light and review limited to determining legal validity of action of superintendent of banks. Peoples Bank of Van Leer v. Bryan, 55 Tenn. App. 166, 397 S.W.2d 401, 1965 Tenn. App. LEXIS 290 (Tenn. Ct. App. 1965).

3. —Additional Evidence.

Acts 1951, ch. 261 amending this section requiring chancellor to weigh evidence introduced before commission in reviewing action of commission on certiorari did not apply to proceeding before chancellor prior to enactment of act, hence material evidence rule would be applied by Court of Appeals. Roberts v. Knoxville Transit Lines, 36 Tenn. App. 595, 259 S.W.2d 883, 1952 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1952).

Additional evidence introduced before court reviewing action of commission in certiorari proceeding is limited to question as to whether the commission exceeded its jurisdiction or acted fraudulently, arbitrarily, or illegally. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 195 Tenn. 593, 261 S.W.2d 233, 1953 Tenn. LEXIS 384 (1953); Hemontolor v. Wilson County Bd. of Zoning Appeals, 883 S.W.2d 613, 1994 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1994).

Additional evidence may be introduced before the trial court on the question of whether the board or commission whose action is being reviewed exceeded its jurisdiction or acted fraudulently, illegally or arbitrarily. Bayside Warehouse Co. v. Memphis, 63 Tenn. App. 268, 470 S.W.2d 375, 1971 Tenn. App. LEXIS 260 (Tenn. Ct. App. 1971).

Review of action of the real estate commission in denying issuance of real estate broker's license was by common law writ of certiorari as provided by § 27-8-101 and chancellor's duty, after hearing the matter as provided by this section, was to determine if the commission exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently with any additional evidence introduced at the court hearing limited to that question. Brown v. Tennessee Real Estate Com., 494 S.W.2d 506, 1972 Tenn. App. LEXIS 275 (Tenn. Ct. App. 1972), cert. denied, 414 U.S. 877, 94 S. Ct. 54, 38 L. Ed. 2d 122, 1973 U.S. LEXIS 898 (1973).

Upon judicial review of a decision of a zoning board, the court did not err in refusing to consider additional evidence that did not bear on the issue of whether the zoning board exceeded its jurisdiction, or acted illegally, arbitrarily or capriciously. Weaver v. Knox County Bd. of Zoning Appeals, 122 S.W.3d 781, 2003 Tenn. App. LEXIS 468 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1191 (Tenn. 2003).

4. —Transcript.

Where transcript of evidence before the commission was sent to circuit court in certiorari proceeding and documents were marked filed by clerk and on appeal clerk certified the documents a motion to strike transcript of the evidence before the commission on the ground that same was not authenticated as a bill of exceptions was overruled by Court of Appeals since technical record before the commission was a part of the technical record in circuit court. Roberts v. Knoxville Transit Lines, 36 Tenn. App. 595, 259 S.W.2d 883, 1952 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1952).

When a motion to dismiss was filed pursuant to § 27-3-118 [repealed] on the ground that the bill of exceptions was not timely filed pursuant to § 27-1-110 (repealed) and the trial court held that, since the appellant had not complied with that section no bill of exceptions had been filed, but declined to dismiss the appeal and held that the appeal must stand on the technical record alone, the court held that, although the original transcript of evidence before the Public Service Commission, by reason of this section, was a part of the technical record before the trial court, it was not a part of the technical record on appeal in the absence of any bill of exceptions or alternative order of the trial judge ordering that the original transcript be sent up on appeal as a part of the record and reciting affirmatively that it contained all the evidence heard in the lower court. Lindsey v. Fowler, 516 S.W.2d 88, 1974 Tenn. LEXIS 444 (Tenn. 1974).

This section presupposes that a judicial or quasi-judicial proceeding is the subject of review and that a record of evidence, common in such proceedings, is available for certification to the reviewing court. Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 1983 Tenn. LEXIS 792 (Tenn. 1983).

5. —Revenue Suits.

The language of this section seems to contemplate revenue suits as suits apart from proceedings under either this section or §§ 27-9-101, 27-9-102, 27-9-104. Fort v. Dixie Oil Co., 170 Tenn. 183, 93 S.W.2d 1260, 1935 Tenn. LEXIS 124 (1936), rehearing denied, 170 Tenn. 464, 95 S.W.2d 931, 1936 Tenn. LEXIS 16 (1936).

This section by implication negatives the idea that the provisions of the act were intended to deal with revenue cases since the making of an exception in this section seems to contemplate revenue cases as suits apart from proceedings under this section. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

6. —Effect of Rules of Civil Procedure.

That portion of this section which required that proof at a hearing be taken by deposition was superseded by Tenn. R. Civ. P. 43.01 which provided that testimony of witnesses should be taken orally under oath in open court. Hunter v. Bowman, 535 S.W.2d 853, 1976 Tenn. LEXIS 585 (Tenn. 1976).

7. Subsection e.

District court properly granted a municipality's motion to dissolve a permanent injunction that enjoined the enforcement of an ordinance related to sexually oriented businesses; an amendment to the definition of “sexually oriented” under Metropolitan Government of Nashville and Davidson County, Tenn., Code of Laws § 6.54.010(Y) and the enactment of T.C.A. § 27-9-111(e), which altered judicial review procedures, cured the constitutional infirmities. Additionally, the district court properly analyzed the issue consistent with Fed. R. Civ. P. 60(b)(5). Déj` Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 466 F.3d 391, 2006 FED App. 375A, 2006 U.S. App. LEXIS 25426 (6th Cir. Tenn. 2006), cert. denied, 549 U.S. 1339, 127 S. Ct. 2088, 167 L. Ed. 2d 765, 2007 U.S. LEXIS 3969 (2007).

Pursuant to Fed. R. Civ. P. 60(b)(5), it was proper for a district court to dissolve an injunction on the enforcement of a local ordinance that regulated sexually oriented businesses, because subsequent amendments narrowing the ordinance cured first amendment overbreadth issues, and a state statute, T.C.A. § 27-9-111(e), ensured prompt judicial review procedures. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 2006 FED App. 0432N, 2006 U.S. App. LEXIS 16323, 2006 FED App. 432N (6th Cir.), reprinted as amended at, Déj` Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 466 F.3d 391, 2006 FED App. 375A, 2006 U.S. App. LEXIS 25426 (6th Cir. Tenn. 2006).

8. Railroad and Public Utility Commission — Authority.

Railroad and public utilities commission performs administrative and legislative functions, and power to hear and determine controversies before it though quasi judicial is merely incidental thereto, hence commission is not a court. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 195 Tenn. 593, 261 S.W.2d 233, 1953 Tenn. LEXIS 384 (1953).

9. Time of Hearing.

Appeal from decision of circuit court in proceeding for review by certiorari of action of Civil Service Commission of Nashville in dismissing policeman was disposed of by Supreme Court at the session at which the appeal was argued in accordance with the declared policy of the legislature as evidenced by this section that suits of this character should “be heard and determined at the earliest practical date, as one having precedence over other litigation.” Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

10. Findings of Fact and Conclusions of Law.

Upon review of action of Civil Service Commission of Nashville in dismissal of employees' statement of trial judge in his final order that he had considered entire record sent up from the commission, argument of counsel and briefs filed from which he found that all of the grounds for relief prayed for in the petition for certiorari were not well taken; that the action of the commission was not arbitrary, illegal and without jurisdiction; that the same was based on material, competent, relevant and reliable evidence and did not violate any constitutional rights of the petitioners constituted compliance with §§ 27-1-113, 27-1-114 and 27-9-111 as to findings of fact and conclusions of law under the pleadings developed in the case. Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557, 1963 Tenn. LEXIS 447 (1963).

Where upon review of action of city beer permit board under the provisions of § 57-5-109 providing for statutory certiorari, chancellor did not weigh the evidence but merely found that the board did not act “illegally, capriciously or unreasonably” in refusing permit the case was reversed and remanded for a trial de novo of the issues had upon such proof as the parties might desire to introduce pursuant to the provisions of this section. Case v. Carney, 213 Tenn. 597, 376 S.W.2d 492, 1964 Tenn. LEXIS 427 (1964).

NOTES TO DECISIONS

1. Appellate Jurisdiction.

Supreme Court did not have jurisdiction to review certiorari proceeding in chancery court arising out of decision of a commission though this section provided for appeal direct to Supreme Court since this section contradicted § 16-4-108 governing jurisdiction of Court of Appeals, hence § 1-3-103 governing conflicts applied, and since subject matter of § 16-4-108 was under jurisdiction of Court of Appeals, and subject matter of this section deals generally with right of appeal in certain certiorari cases the Court of Appeals had jurisdiction. Woodroof v. Nashville, 183 Tenn. 483, 192 S.W.2d 1013, 1946 Tenn. LEXIS 228 (1946) (decided before 1970 amendment).

2. Bill of Exceptions and Motion for New Trial.

The railroad and public utilities commission issued certificates of convenience and necessity to permit the operation of truck lines, which action was affirmed by the circuit judge, and the appeal was taken to the Court of Appeals. It was held that the filing of a bill of exceptions was necessary, which might have been accomplished by an order of the trial judge directing that the original transcript before the railroad and public utilities commission should be sent up to the Court of Appeals as part of the record, but showing further affirmatively, that such transcript contained all the evidence heard in the cause in the circuit court. But a more fatal defect in the appeal was the failure to file and secure the action of the trial judge on a motion for a new trial, upon such grounds as, if overruled, would be the assignments of error in the Court of Appeals. Hoover Motor Exp. Co. v. Railroad & Public Utilities Com., 193 Tenn. 284, 246 S.W.2d 15, 1951 Tenn. LEXIS 356 (1951).

Notwithstanding the provisions of this section, motion for new trial was necessary for review of decree of chancellor affirming action of city Civil Service Commission dismissing city employee. Rhem v. Civil Service Com., 49 Tenn. App. 44, 350 S.W.2d 292, 1961 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1961).

3. Time of Hearing.

Appeal from decision of circuit court in proceeding for review by certiorari of action of Civil Service Commission of Nashville in dismissing policeman was disposed of by Supreme Court at the session at which the appeal was argued in accordance with the declared policy of the legislature as evidenced by § 27-9-111 that suits of this character should “be heard and determined at the earliest practical date, as one having precedence over other litigation.” Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

NOTES TO DECISIONS

1. Reinstatement of Employee.

Mandamus was a proper remedy to compel reinstatement of civil service employee of city who was discharged without a hearing, as common law certiorari was not applicable since there was no proceeding to review. State ex rel. Paylor v. Knoxville, 195 Tenn. 318, 259 S.W.2d 537, 1953 Tenn. LEXIS 343 (1953).

Where after issuance of writ of certiorari by circuit court for review of action of city Civil Service Commission in dismissing policeman and after commission's return to the writ, policeman moved for order for his reinstatement on ground that commission had failed to certify a full, true and complete record and transcript of the proceedings before the commission and motion was granted, such motion was equivalent to a demurrer on the ground of an insufficient return so that a motion for a new trial was unnecessary and Supreme Court could reverse and remand the cause for further proceedings where the error complained of was specifically called to the attention of the court by exception to order of court reinstating policeman. Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

Where department head did not promptly file charges which were the basis of dismissal of employee with civil service commission as provided in metropolitan charter, mandamus directing department head to promptly file such charges and directing civil service commission to promptly hear and dispose of charges was justified but it was not proper for chancellor to take case away from civil service commission and order restoration of employee to former position without hearing before commission. State ex rel. Spence v. Metropolitan Government of Nashville & Davidson County, 63 Tenn. App. 161, 469 S.W.2d 777, 1971 Tenn. App. LEXIS 215 (Tenn. Ct. App. 1971).

Although the employer had proved a violation of the Memphis police department rule 104, the termination of the employee, a police officer, was inappropriate because, although the officer's conduct was inappropriate, the officer's conduct was not so egregious in itself as to have dictated termination; the civil service commission's decision reversed the employer's decision to terminate the employee and the commission's decision was supported by substantial and material evidence under T.C.A. § 4-5-322(h) and T.C.A. § 27-9-114(b)(1). City of Memphis v. Civil Serv. Comm'n, 239 S.W.3d 202, 2007 Tenn. App. LEXIS 129 (Tenn. Ct. App. Mar. 13, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 677 (Tenn. Aug. 13, 2007).

Reversal of the termination of a county firefighter was appropriate because the county civil service merit board conceded that the hearing notice to the firefighter was deficient from a due process perspective as the board sought to uphold the firefighter's termination on different charges. To the extent that the board upheld the firefighter's termination on grounds other than the charges specifically identified, the termination ran afoul of the firefighter's due process rights. Moss v. Shelby Cty. Civ. Serv. Merit Bd., — S.W.3d —, 2018 Tenn. App. LEXIS 597 (Tenn. Ct. App. Oct. 10, 2018).

2. Exhausting Administrative Remedy.

Under this section no court of record shall entertain any proceeding involving the civil service status of a county or city employee unless this official first exhausted his administrative appeal to the Civil Service Commission and there made a record, unless it would be futile to do so, and the fact that authorities will probably deny requested relief does not show futility. State ex rel. Jones v. Nashville, 198 Tenn. 280, 279 S.W.2d 267, 1955 Tenn. LEXIS 372 (1955).

3. Sufficiency of Allegations.

In proceedings in circuit court to review action of city Civil Service Commission in dismissing policeman, allegations in petition for certiorari that no testimony was offered that accused was guilty of any of the charges, and that the testimony failed in every particular and that the action of the commission was not warranted by the law and facts were sufficient to show that it was contemplated that the proceedings be one of common law certiorari. Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

4. Matters Considered.

In proceedings in accordance with the rule of common law writ of certiorari as provided by this section the reviewing court may review the evidence solely for the purpose, and to the extent, of determining whether any of it that is material supports the action of the board or commission, and if the record contains such supporting evidence in the opinion of the reviewing court such court may not disturb the action of the board or commission. Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

In review of action of city Civil Service Commission in dismissing policeman where commission's return to writ of certiorari did not contain a stenographic report of the evidence presented in the hearing before the commission but contained a summary of the testimony of witnesses, the summary of the testimony made it the duty of the circuit court to consider that testimony and to determine therefrom whether the commission acted arbitrarily, illegally or without material supporting evidence. Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

The trial court does not weigh the evidence, and the scope of review by the appellate courts is no broader or more comprehensive than that of the trial court with respect to evidence presented before the board. Watts v. Civil Service Board, 606 S.W.2d 274, 1980 Tenn. LEXIS 501 (Tenn. 1980), cert. denied, Watts v. Civil Service Bd., 450 U.S. 983, 101 S. Ct. 1519, 67 L. Ed. 2d 818, 1981 U.S. LEXIS 1234 (1981).

Review of city council's decision to dismiss firefighter was restricted to consideration of whether lower tribunal acted arbitrarily, illegally or without material supporting evidence. Huddleston v. Murfreesboro, 635 S.W.2d 694, 1982 Tenn. LEXIS 423 (Tenn. 1982).

In reviewing personnel board's dismissal of public employee, trial court can review evidence found in transcript solely for purpose of determining whether there is any material evidence to support action of board, in which case trial court may not disturb board's action. Burns v. Johnson, 636 S.W.2d 441, 1982 Tenn. App. LEXIS 490 (Tenn. Ct. App. 1982).

In a review of a matter under this section, neither the chancery court nor the court of appeals determines any disputed question of fact or weighs any evidence. Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 1983 Tenn. App. LEXIS 710 (Tenn. Ct. App. 1983).

In upholding the termination of a police officer for unwarranted use of deadly force, city council was acting as “civil service board,” rather than as legislative body, and the standards set forth in § 4-5-322 were properly applied in reviewing the decision of the council. Holder v. City of Chattanooga, 878 S.W.2d 950, 1993 Tenn. App. LEXIS 699 (Tenn. Ct. App. 1993), appeal denied, oga, — S.W.2d —, 1994 Tenn. LEXIS 78 (Tenn. Feb. 28, 1994).

Panel's proceedings regarding employees' applications for benefits arising from on the job injuries was not governed by T.C.A. § 27-9-114 because the panel was not a civil service board under amended language of T.C.A. § 27-9-114; thus, the proper judicial review of the panel's decision was by common law writ of certiorari. Tidwell v. City of Memphis, — S.W.3d —, 2004 Tenn. App. LEXIS 886 (Tenn. Ct. App. Dec. 28, 2004), rev'd, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

In those instances where T.C.A. § 27-9-114 is applicable, § 27-9-114 is the exclusive remedy for judicial review of administrative determinations respecting the employment status of such employees. Tidwell v. City of Memphis, — S.W.3d —, 2004 Tenn. App. LEXIS 886 (Tenn. Ct. App. Dec. 28, 2004), rev'd, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

Although most of the cases arising under T.C.A. § 27-9-114 have to do with employee discharges and suspensions, T.C.A. § 27-9-114 is not limited to those situations, and the term “employment status” encompasses the entire legal relation of the employee to the employer. Tidwell v. City of Memphis, — S.W.3d —, 2004 Tenn. App. LEXIS 886 (Tenn. Ct. App. Dec. 28, 2004), rev'd, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

Former assistant chief of police failed to provide either a factual or legal basis to undermine the chief of police's decision to utilize temporary assignment positions in his reorganization plan, as the chief's decision was approved by the director of human resources and the civil service commission. Miller v. Civil Serv. Comm'n of the Metro. Gov't of Nashville & Davidson County, 271 S.W.3d 659, 2008 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 22, 2008), appeal denied, Miller v. Civil Serv. Comm'n of the Metro Gov't of Nashville & Davidson County, — S.W.3d —, 2008 Tenn. LEXIS 440 (Tenn. June 23, 2008).

Record contained substantial and material evidence to support the civil service commission's conclusion that the reorganization of the police department complied with commission Rule 3.11 because the duties performed by the former assistant chiefs of police were not the same as the duties performed currently by the deputy chiefs of police; the reporting relationships were clearly different and the duties of the deputy chief of police for field operations were far broader than the duties and responsibilities of the former assistant chief of police for the west patrol bureau. Miller v. Civil Serv. Comm'n of the Metro. Gov't of Nashville & Davidson County, 271 S.W.3d 659, 2008 Tenn. App. LEXIS 29 (Tenn. Ct. App. Jan. 22, 2008), appeal denied, Miller v. Civil Serv. Comm'n of the Metro Gov't of Nashville & Davidson County, — S.W.3d —, 2008 Tenn. LEXIS 440 (Tenn. June 23, 2008).

5. Application of Section.

Proceedings commenced in circuit court by writ of certiorari which sought to review action of Civil Service Commission of Nashville in dismissing policeman were governed by this section. Lansden v. Tucker, 204 Tenn. 388, 321 S.W.2d 795, 1959 Tenn. LEXIS 292 (1959).

This section was applicable to review of refusal of Civil Service Commission of Metropolitan Government of Nashville and Davidson County to review dismissal of employee by Metropolitan Employee Benefit Board. Culbertson v. Metropolitan Government of Nashville & Davidson County, 483 S.W.2d 716, 1971 Tenn. LEXIS 335 (Tenn. 1971).

Private act enacted in 1953 which provided for appeal from action of Greeneville Civil Service Board to chancery court within 10 days of entry of an order did not have the effect of repealing existing provisions of §§ 27-9-102 and 27-9-114 which provided for review of actions involving public employees by common writ of certiorari within 60 days, and the Code provisions governed review procedure. Wilson v. Greeneville, 509 S.W.2d 495, 1973 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1973).

This section governed the scope of review governing an appeal by a discharged deputy sheriff. Whitmore v. Civil Service Merit Bd., 673 S.W.2d 535, 1984 Tenn. App. LEXIS 3404 (Tenn. Ct. App. 1984).

Review of an airport security officer's revocation of commission for one year was not reviewable under former § 8-30-327 (repealed), but was by common law certiorari under this section and had to be filed within 60 days from entry of the order of judgment under § 27-9-102. Wheeler v. Memphis, 685 S.W.2d 4, 1984 Tenn. App. LEXIS 3292 (Tenn. Ct. App. 1984).

This section, which mandates common law certiorari, applies in cases involving denial of pensions to civil servants. Kendrick v. Chattanooga Firemen's & Policemen's Ins. & Pension Fund Bd., 799 S.W.2d 668, 1990 Tenn. App. LEXIS 478 (Tenn. Ct. App. 1990), appeal denied, Kendrick v. Chattanooga Fireman's & Policemen's Ins. & Pension Fund Bd., 1990 Tenn. LEXIS 461 (Tenn. Dec. 3, 1990).

When city employees sought review of the decision of a municipal panel which denied their disability claims, the panel which finally denied their claims properly fit within the provisions of T.C.A. § 27-9-114 regarding civil service boards, so the procedures in the Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et seq., had to be employed in determining their claims. Tidwell v. City of Memphis, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

In order for T.C.A. § 27-9-114(a)(1), to apply to decisions about municipal workers'  employment, there had to: (1) Be a proceeding before a civil service board; and (2) A decision that affected the employment status of a civil service employee, and absent either of these two prerequisites, T.C.A. § 27-9-114 did not apply, and, if § 27-9-114 did not apply, review was under the common law writ of certiorari, which limited the review to whether the administrative agency had exceeded its authority or had acted illegally, arbitrarily, or fraudulently, but, if § 27-9-114 applied, the Uniform Administrative Procedures Act (APA), T.C.A. § 4-5-101 et seq., governed, and, under the APA, an administrative agency's decision could be reversed if the court determined that the decision was, among other things, made upon unlawful procedure, under T.C.A. § 4-5-322(h)(3). Tidwell v. City of Memphis, 193 S.W.3d 555, 2006 Tenn. LEXIS 433 (Tenn. 2006).

Court of appeals overrules the decisions in Morris v. City of Memphis Civil Service Commission, 2009 Tenn. App. LEXIS 812, (Tenn. Ct. App. Dec. 7, 2009), and Redmon v. City of Memphis, Tenn. App. LEXIS 122, (Tenn. Ct. App. Feb. 19, 2010), to the extent they hold that any civil service board under a home rule charter form of government is exempt from the contested case procedures of the Uniform Administrative Procedures Act. Marino v. Bd. of Admin. Memphis Ret. Sys., — S.W.3d —, 2015 Tenn. App. LEXIS 909 (Tenn. Ct. App. Nov. 16, 2015).

Civil service boards of a city did not fall within the plain language of the home rule exception for county civil service boards, and thus, the board of administration of the city retirement system was not exempt from the contested case procedures of the Uniform Administrative Procedures Act; the language of the statute is plain and unmistakable, it exempts civil service boards of counties organized under a home rule charter, not cities. Marino v. Bd. of Admin. Memphis Ret. Sys., — S.W.3d —, 2015 Tenn. App. LEXIS 909 (Tenn. Ct. App. Nov. 16, 2015).

Review of the termination of a firefighter for a city was through the common law writ of certiorari because there was no law that created the procedures for the city. Keller v. Casteel, — S.W.3d —, 2019 Tenn. App. LEXIS 39 (Tenn. Ct. App. Jan. 28, 2019).

6. Appeal.

Jurisdiction on appeal from review by chancellor of refusal of Civil Service Commission of Metropolitan Government of Nashville and Davidson County to review dismissal of employee by Metropolitan Employee Benefit Board was in Supreme Court since consideration of questions of fact by chancellor on common law writ of certiorari was precluded. Culbertson v. Metropolitan Government of Nashville & Davidson County, 483 S.W.2d 716, 1971 Tenn. LEXIS 335 (Tenn. 1971).

On deputy sheriff's appeal of his discharge to the Chancery Court of Shelby County, the scope of review of the chancery court was not governed by Chapter 110, Section 24 of the Private Acts of 1971, but by this section. Kent v. Civil Service Merit Bd., 652 S.W.2d 350, 1983 Tenn. App. LEXIS 568 (Tenn. Ct. App. 1983).

Under the standards of review set forth in T.C.A. § 4-5-322(h), a park ranger was properly awarded in line of duty benefits under T.C.A. § 7-51-201(a)(1) because he was a government employee who was a commissioned special policeman, even though he was not a nominal employee of the police department, because: (1) The government's charter provided that the special police force was a component of the police department; (2) The police department, through its chief of police, maintained control over the park ranger's discharge of his duties as a special policeman; and (3) The conclusion was consistent with the purposes of the Tennessee Heart and Hypertension Act, T.C.A. Metro. Gov't of Nashville v. Metro. Employee Benefit Bd., — S.W.3d —, 2007 Tenn. App. LEXIS 389 (Tenn. Ct. App. June 22, 2007).

Although a county civil service merit board was required to transmit its final decision as part of the administrative record, there was no question that the board rendered a final decision subject to appellate review, and that the lower court had before it all relevant information pertaining to that decision; the court of appeals therefore had subject matter jurisdiction over the matter, and the dispute, which was a narrow one of pure law, could be resolved without a remand. County of Shelby v. Tompkins, 241 S.W.3d 500, 2007 Tenn. App. LEXIS 433 (Tenn. Ct. App. July 12, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 1071 (Tenn. Nov. 19, 2007).

There was no basis for concluding that the sheriff's department could not inquire into the deputy jailer's expunged records and the jailer did not have the right to refrain from disclosing his expunged conviction in his response to sheriff's department lawful inquiry. The County Civil Service Merit Review Board's consideration of the jailer's admission of an expunged conviction was proper; accordingly, the trial court did not err in holding that the Board's decision was based on substantial and material evidence. Macon v. Shelby County Gov't Civ. Serv. Merit Bd., 309 S.W.3d 504, 2009 Tenn. App. LEXIS 643 (Tenn. Ct. App. Sept. 25, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 284 (Tenn. Mar. 15, 2010).

Police officer's termination of employment was improper because the expert's testimony on which the Civil Service Commission relied was incongruent with the undisputed facts in the record; the facts in the record fairly detracted from the weight accorded by the Commission to the document examiner's opinion testimony. Thus, the Commission's decision was not supported by substantial and material evidence and was arbitrary and capricious, T.C.A. § 27-9-114(b)(1). Mitchell v. Madison County Sheriff's Dep't, 325 S.W.3d 603, 2010 Tenn. App. LEXIS 238 (Tenn. Ct. App. Mar. 31, 2010), rehearing denied, 325 S.W.3d 603, 2010 Tenn. App. LEXIS 819 (Tenn. Ct. App. 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 951 (Tenn. Oct. 12, 2010).

7. —Motion for New Trial.

On appeal from decree of chancery court in common law certiorari proceedings wherein chancellor affirmed action of city Civil Service Commission in dismissing city employee, appeal was dismissed by Court of Appeals where no motion for new trial was made. Rhem v. Civil Service Com., 49 Tenn. App. 44, 350 S.W.2d 292, 1961 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1961).

8. Civil Rights Actions.

Even if the remedies provided in this chapter are available to a plaintiff, there is no requirement that a plaintiff exhaust administrative or state remedies prior to filing an action under 42 U.S.C. § 1983. Henderson v. Bentley, 500 F. Supp. 62, 1980 U.S. Dist. LEXIS 14325 (E.D. Tenn. 1980), aff'd without opinion, 698 F.2d 1219, 1982 U.S. App. LEXIS 12408 (6th Cir. Tenn. 1982).

9. Reversal or Modification of Board Action.

In the trial court, under the common law writ, reversal or modification of an action of a city civil service board may be had only when the trial court finds that the board has acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision. Watts v. Civil Service Board, 606 S.W.2d 274, 1980 Tenn. LEXIS 501 (Tenn. 1980), cert. denied, Watts v. Civil Service Bd., 450 U.S. 983, 101 S. Ct. 1519, 67 L. Ed. 2d 818, 1981 U.S. LEXIS 1234 (1981); Austin v. Shelby County Gov't, 761 S.W.2d 298, 1988 Tenn. App. LEXIS 259 (Tenn. Ct. App. 1988).

Where the undisputed facts showed that a former employee, a police officer, made contact with a minor through an internet chat room and viewed sexually explicit images of her, he was properly terminated for violating Memphis police department policy and procedure rule 104; the facts warranted a result contrary to a commission's reinstatement decision under T.C.A. § 4-5-322(h). City of Memphis v. Civil Serv. Comm'n, 216 S.W.3d 311, 2007 Tenn. LEXIS 143 (Tenn. 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 342 (Tenn. Apr. 2, 2007).

10. Res Judicata.

Where deputy sheriff was fired and the Civil Service Board, upon discovering that the sheriff's department had not given deputy written specification of charges as required by statute, ordered him reinstated; and thereafter written charges were served on him, he was again fired, he had a hearing before the board on the written charges, and the firing was approved, principles of “res judicata” did not bar the second firing and subsequent hearing. Kent v. Civil Service Merit Bd., 652 S.W.2d 350, 1983 Tenn. App. LEXIS 568 (Tenn. Ct. App. 1983).

City civil service commission erred in dismissing a firefighter's appeal of his termination based on res judicata because he did not have an ample opportunity in federal court to litigate whether he was terminated for just cause; the jury only decided the firefighter knowingly or recklessly made false statements, and the federal court's order entering summary judgment on the claims of racial discrimination and retaliation did not mean there was just cause for terminating the firefighter. Davis v. City of Memphis, — S.W.3d —, 2017 Tenn. App. LEXIS 103 (Tenn. Ct. App. Feb. 16, 2017).

11. Termination Appropriate.

Although a police officer identified evidence that fairly detracted from the weight of the evidence supporting his termination, there was substantial evidence supporting a civil service commission's decision to fire him after a mental patient suffering from self-inflicted wounds died from a heart attack during a baton beating; a deputy chief testified that her review of the officer's entire disciplinary history and personnel file militated in favor of termination, and a training sergeant testified that officers were not taught to use a baton as a restraining device. The patient no longer had a knife, he did not directly confront the officers involving, and the patient was beaten and held down with batons after he tripped and was lying face down in the street. Penny v. City of Memphis, 276 S.W.3d 410, 2008 Tenn. App. LEXIS 137 (Tenn. Ct. App. Mar. 12, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 716 (Tenn. Sept. 29, 2008)

Chancery court erred in ruling that a civil service commission violated a statutory provision by failing to give an employee the benefit of the self-defense statute because that statute was not relevant to the commission's resolution of a factual dispute; the commission was fully apprised of the employee's claim that he acted in self-defense during an altercation and afforded more weight to the evidence supporting the victim's account of the altercation. Holmes v. City of Memphis Civ. Serv. Comm'n, — S.W.3d —, 2017 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 329 (Tenn. May 22, 2017).

Because a fire department employee never asserted that he was treated differently than other employees based on his membership in a suspect class, evidence that those employees were treated differently than he was treated was not material to his equal protection claim; it makes sense to consider evidence intended to show disparate treatment violating equal protection only insofar as it is based on discrimination against a suspect class. Holmes v. City of Memphis Civ. Serv. Comm'n, — S.W.3d —, 2017 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 329 (Tenn. May 22, 2017).

Civil service commission did not commit reversible error in excluding evidence of disparate treatment regarding other employees because the evidence was immaterial in the absence of an assertion that those employees were treated differently from an employee of the city fire department based on his membership in a suspect class. Holmes v. City of Memphis Civ. Serv. Comm'n, — S.W.3d —, 2017 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 329 (Tenn. May 22, 2017).

Civil service commission's decision to uphold an employee's termination was supported by substantial and material evidence because the employee's conduct during an altercation violated the disciplinary rules, and the city demonstrated that the disciplinary violations furnished a reasonable basis for terminating his employment; the courts are not permitted to substitute their own judgment for that of the commission as to the weight of the evidence. Holmes v. City of Memphis Civ. Serv. Comm'n, — S.W.3d —, 2017 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 329 (Tenn. May 22, 2017).

Decision of the trial court upholding the employee's termination was supported by substantial evidence because a reasonable person could have concluded that the employee's continued refusal to cooperate with or obey the directives of the lieutenant in connection with the final ride along session was insubordination and exhibited a willful failure to follow lawful instructions. Armstrong v. Shelby Cty. Juvenile Court, — S.W.3d —, 2018 Tenn. App. LEXIS 675 (Tenn. Ct. App. Nov. 20, 2018).

Police department's termination of an officer's employment was appropriate because substantial evidence evidence supported the administrative law judge's finding that the officer violated police department policies by falsely arresting an individual and by operating a police vehicle recklessly in response to emergency calls. These violations warranted the termination of the officer's employment because, despite previous disciplinary actions and opportunities for improvement, the officer continued to exhibit reckless and dangerous behavior. Campbell v. City of Chattanooga, — S.W.3d —, 2019 Tenn. App. LEXIS 541 (Tenn. Ct. App. Nov. 6, 2019).

Police department's termination of an officer's employment was appropriate because substantial evidence supported the administrative law judge's finding that the officer violated police department policies by falsely arresting an individual and by operating a police vehicle recklessly in response to emergency calls. These violations warranted the termination of the officer's employment because, despite previous disciplinary actions and opportunities for improvement, the officer continued to exhibit reckless and dangerous behavior. Campbell v. City of Chattanooga, — S.W.3d —, 2019 Tenn. App. LEXIS 541 (Tenn. Ct. App. Nov. 6, 2019).

12. Judicial Review.

For purposes of judicial review, the court must presume the Electric Power Board approved of the administrative law judge's findings absent a written order to the contrary. Elec. Emles. Civ. Serv. & Pension Bd. of the Metro. Gov't v. Mansell, — S.W.3d —, 2020 Tenn. App. LEXIS 49 (Tenn. Ct. App. Feb. 4, 2020).