Pairamore v. Pairamore

547 S.W.2d 545, 1977 Tenn. LEXIS 559

• Court: Tennessee Supreme Court
• Decided: February 28, 1977
• Status: Published

Opinions

OPINION

FONES, Justice.

This divorce case is before this Court for the second time. The first petition for cer-tiorari in 1974, was denied but the Court filed a memorandum opinion suggesting that Mrs. Pairamore’s claim for homestead under T.C.A. § 36 — 824 be given consideration on remand. She had expressly asked for homestead for the first time in her 1974 certiorari petition to this Court but her complaint had asked that her husband’s interest in the family residence be divested out of him and vested in her, held to be a sufficient prayer to support an award of homestead in Trimble v. Trimble, 224 Tenn. 571, 458 S.W.2d 794 (1970). Neither the trial court nor the Court of Appeals had considered homestead and the decree of the Court of Appeals, insofar as relevant here, had awarded petitioner periodic alimony in a nominal sum and remanded the cause to the trial court for the enforcement of its decree and retention in that court for any modification required by a change of circumstances of the parties.

On remand to the General Sessions Court of Tipton County, that court decreed that it did not have jurisdiction to order a sale of the family residence for the purpose of awarding homestead out of the proceeds thereof. On petitioner’s appeal from that order to the Court of Appeals that Court held that its former decree had not provided for homestead and, by implication, that this Court’s memorandum opinion denying certiorari had no force and effect whatever on the finality of the Court of Appeals decree, which left nothing within the jurisdiction of the trial court except the enforcement and/or modification of periodic alimony-

We granted this second petition for cer-tiorari, where, obviously, the primary question is the extent of the jurisdiction, of this Court on a petition for the writ of certiorari that is disposed of by denial of the writ accompanied by an opinion.

The question of when this Court acquires jurisdiction on certiorari has been considered in a number of cases. There is a line of cases using language to the effect that this Court has no jurisdiction whatever unless and until the writ of certiorari is granted. Other cases hold that jurisdiction vests in this Court upon the timely filing of a petition for the writ of certiorari.

Cases holding that jurisdiction is dependent entirely upon the granting of the writ are Red Top Cab Co. v. Garside, 155 Tenn. 614, 298 S.W. 263 (1927), Cantrell v. Louisville & N. R. Co., 179 Tenn. 180, 163 S.W.2d 824 (1942), and McAllester v. McAllester, 217 Tenn. 226, 396 S.W.2d 363 (1965).

In Red Top the Court said:

“The bare filing of such a petition does not even remove the case to this Court.” 155 Tenn. at 617, 298 S.W. at 264.

In Cantrell the Court said:

“Unless the writ of certiorari be granted, the case does not get into this court. It is not until the writ is granted that ‘the original transcript . . . shall be filed in the supreme court.’ When certiorari is denied, the result is that this court thereby refuses to take jurisdiction of the case.” 179 Tenn. at 182, 183, 163 S.W.2d at 825.

In McAllester the Court having written and filed in the cause an opinion denying the writ of certiorari, on petition to rehear, a second opinion was written and published wherein the Court said:

“[W]e have no jurisdiction to entertain this motion since this case is not now and has never been before this Court.

It would seem to us axiomatic that the denial of the writ would be sufficient to show that we refused to take jurisdiction because we felt that the action of the Court of Appeals was correct.” 217 Tenn. at 232, 396 S.W.2d at 366.

Thereafter the Court said:

“We refused to grant the writ in this case and filed a memorandum opinion in which we set forth our reasons for such action and ordered that it be filed. In most cases the Clerk is directed to notify counsel that the petition has either been denied or granted and nothing more. If granted, of course, the case is set down for argument, as required by statute. If denied the matter is ended as we have refused to take jurisdiction.” 217 Tenn. at 232, 233, 396 S.W.2d at 366.

Again, the Court said:

“It is obvious that we have no jurisdiction of this case because we cannot both deny the writ and at the same time take jurisdiction of the case.” 217 Tenn. at 233, 396 S.W.2d at 366.

On the other hand, in Enamelware Company v. Smith, 168 Tenn. 203, 76 S.W.2d 644 (1934) this Court, in the course of considering the requirements of the certiorari procedure after judgment in the Court of Appeals said:

“It is, therefore, the filing of a sworn petition within the 45-day period, unless within that period the time is extended, that confers jurisdiction upon this court.” 168 Tenn. at 206, 76 S.W.2d at 645.

Mr. Justice Tomlinson writing for the Court in DePew v. King’s Inc., 197 Tenn. 569, 276 S.W.2d 728 (1955) expressly approved the foregoing quote.

The unmistakable purpose of the Legislature in providing for review of the final judgments of the intermediate appellate courts by certiorari was to confer jurisdiction upon this Court the instant a petition for the writ of certiorari, meeting the requirements of T.C.A. §§ 27-819-27-823 inclusive is filed in the appropriate clerk’s office.

We think that T.C.A. § 16-411 and Ramsey v. Mutual Supply Company, 221 Tenn. 437, 427 S.W.2d 211 (1968) support that position.

T.C.A. § 16-411 reads as follows:

“16-411. Effect of judgments. — The Court of Appeals is a court of record, and its judgments, after expiration of the time for filing petition for writ of certio-rari with the Supreme Court and the time during which a duly filed petition for writ of certiorari remains undisposed of, shall be executed by all necessary and proper writs, unless superseded, reversed or modified by the Supreme Court. [Acts 1925, ch. 100, § 13; Shan.Supp., § 6325al3; mod. Code 1932, § 10627; mod. C. Supp. 1950, § 10627.]”

In Ramsey, this Court held that (1) while the filing of a petition for certiorari does not vacate the decree of the Court of Appeals, the decree is unenforceable by that Court during the period mentioned in T.C.A. § 16 — 411 and (2) since the 1950 amendment, the writ of supersedeas is unnecessary from and after a timely filing of a petition for certiorari, because the decree of the Court of Appeals remains unenforceable during the time that such petition is pending in this Court.

Of course, it is elementary that while jurisdiction is in this Court, or during the period within which a petition for cer-tiorari may be filed, neither the intermediate court nor the trial court can assume jurisdiction. While that issue is not directly involved here, instances have occurred in both civil and criminal cases, recently, demonstrating a failure to recognize this principle which is implicit in the statutory certio-rari procedure discussed above.

Among the definitions of the word jurisdiction appearing in Black’s Law Dictionary, Fourth Edition, are the following:

“The word is a term of large and comprehensive import, and embraces every kind of judicial action, [citations omitted] It is the authority by which courts and judicial officers take cognizance of and decide cases.”

It is the duty of this Court to make a disposition of every petition for the writ of certiorari. We decide each case that comes to this Court by petition for certiorari by granting or denying the writ. When we deny the writ, we have not “refused to take jurisdiction” as was said in McAllester and other cases but have made a final disposition of the case by approving the final decree of the Court of Appeals. Without jurisdiction this Court is without authority to review and deny a petition for certiorari.

Occasionally, along with the denial of the writ, an opinion is filed and less often, that opinion is published as in Cantrell, McAllester, Gillespie v. Martin et al., 172 Tenn. 28, 109 S.W.2d 93 (1937), Pass v. State, 181 Tenn. 613, 184 S.W.2d 1 (1944), and Watts v. Putnam County, 525 S.W.2d 488 (Tenn.1975). Also, in Cunningham v. Union Chevrolet, 177 Tenn. 214, 147 S.W.2d 746 and on petition to rehear, 177 Tenn. 226, 148 S.W.2d 633 (1941), Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241 (1946), and Franklin v. State, 496 S.W.2d 885 (Tenn.1973) opinions were filed and published and the writ was denied. But, the results reached by the final decree of the Court of Appeals were not changed in any of the cases mentioned above. The obvious conclusion to be drawn is that this Court deemed it appropriate to address some issue or issues raised in the petition for the writ of certiorari and because the final decree of the intermediate court was to remain unchanged it was deemed unnecessary to grant the writ. It is apparent that in the eases cited and others the opinion of the intermediate court, as distinguished from its final decree, was changed or modified by this Court.

Some certiorari petitions are disposed of by denial of the writ, concurring in results only. By precedent, and more recently in accord with Supreme Court Rule 31, such a denial evinces this Court’s judgment that the opinion of the Court of Appeals should not be published. Thus, there are two methods employed by this Court when denying the writ of certiorari that can be said to affect the opinion of the Court of Appeals, without affecting the final decree.

The principles of law enunciated in published opinions of this Court that simultaneously deny certiorari have not been questioned or challenged on the grounds that the Court had no jurisdiction, unless and until certiorari was granted, and therefore its pronouncement was a nullity. For example, the opinion in Franklin established the law in Tennessee with respect to those factual situations under which retroactive application of the rule of Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) should be considered and the guidelines for making the ultimate determination of constitutionally prejudicial error. That case has been cited and followed by the Court of Criminal Appeals, this Court and implicitly approved by the United States Supreme Court in Robbins v. Tennessee, 414 U.S. 996, 94 S.Ct. 348, 38 L.Ed.2d 233 (1973). Cantrell and Watts, among other cases, have similarly established principles of law in this State that remain unquestionably the present controlling law on the issues addressed.

The concept of this Court’s jurisdiction above expressed is obviously in conflict with statements appearing in Red Top, Cantrell and McAllester, to the effect that a case is “not now and has never been before this Court” unless the writ of certiorari is granted. We regard those statements as completely erroneous. It is unthinkable that the law indulges in fictions on the fundamental question of jurisdiction. It is indeed an anomaly if we are relying upon controlling precedent that has been established in cases that were never brought before this Court.

Nevertheless, we cannot escape the conclusion that it is improper for this Court to change or modify a final decree of the intermediate appellate courts and deny the writ. We believe this conclusion is necessary and desirable for the orderly administration of justice if not mandated by the relevant statutes and the precedent established by this Court’s procedure on review of certiorari petitions since the enactment of Chapter 100, Public Acts, 1925. But, the reason, in our opinion, is not that this Court is without jurisdiction until the writ is granted but simply that denial of the writ necessarily puts the stamp of approval on the results reached in the final decree of the intermediate court and it is therefore inconsistent for this Court to change or modify that decree, as distinguished from the opinion, unless the writ be granted.

From what has been said, it follows that insofar as this Court’s memorandum opinion denying the writ modified the final decree of the Court of Appeals it was of no force and effect. The result reached by the Court of Appeals is affirmed and the cause remanded to the General Sessions Court of Tipton County for enforcement and/or modification of the decree of the Court of Appeals with respect to alimony.

HARBISON, J., concurs. BROCK, J., and COOPER, C. J. (see separate opinion). HENRY, J., concurs in part, dissents in part (see separate opinion).