Thomas v. Dockery

232 S.W.2d 594, 33 Tenn. App. 695, 1950 Tenn. App. LEXIS 125

• Court: Court of Appeals of Tennessee
• Decided: July 13, 1950
• Status: Published

Opinions

SWEPSTON, J.

The material question on this appeal is whether the petition for a writ of error coram nohis is sufficient in its allegations of accident, surprise or mistake.

The original complainant who is appellant here filed his bill February 16, 1948 to remove a cloud from his title to certain real estate he had acquired by warranty deed of defendant, alleging that after he had paid the purchase price of $600.00 defendant had placed of record a certain contract relating to the same trade by which it was made to appear that defendant had not been paid.

Subpoena to Answer was served on defendant February 18,1948. Decree Pro Confesso was taken March 11, 1948 and final decree March 29,1948 sustaining the bill.

Petition for writ of error coram nobis was filed April 13, 1948.

The writ was issued on fiat of the Chancellor and complainant notified.

Complainant as respondent to the petition filed his demurrer which was heard and overruled September 22, 1948, and exception taken by demurrant, who then answered and after a hearing on the petition, the same was sustained, and decree vacating the former decree and dismissing the original decree and entering a judgment in favor of petitioner for $600.00 with interest.

Respondent has appealed and assigned errors, but we need notice only Assignment II.

Appellee has filed a motion to dismiss for failure of appellant to file a bill of exceptions. The motion would be well taken as to any review of the evidence called for by some of the other assignments. But Assignment II is to be disposed of on the technical record and same is as follows: “The trial court erred in granting the petition for writ of error coram nobis: — (a) Because same is insufficient in its averments in not showing that the petitioner was diligent in making' his defense, to the original bill in the cause, but on the contrary was very undiligent, careless and negligent in failing to make defense to the said original bill, with all the fault on his part, (b) Because said petition does not sufficiently show that petitioner ‘was prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part ’, as required by the statutes. ’ ’

This question was properly raised by his demurrer, so we take it counsel means the Court erred in overruling the demurrer, which was directed generally against the allegations of the petition as to diligence and specifically against paragraph 4 of the petition.

The only allegations in the bill relevant to diligence are in paragraph 4, which is as follows:

‘ ‘ That -he had no notice whatever of the intention of John Thomas, Jr., to proceed without a trial as he did in said formal cause; that immediately after he was served with process in this cause on February 18, 1948, he took the copy of the bill in cause #50901 to Mr. J. R. Surrency, an attorney in the courthouse and he believed and felt that the attorney would make proper defenses for him; that this petitioner is, as stated, not learned in the law and naturally assumed and felt justified; that to his surprise and disappointment and chagrin, Mr. Surrency turned the copy of the bill back to him within the last seven days prior to this date, (April 10, 1948); that Mr. Surrency suggested he take the matter to Mr. Coleman, who had represented him for some years; that he immediately took the copy of the bill to Mr. Coleman and Mr. Coleman then advised him that he had quit the practice of law and suggested that he employ his present solicitor.

“That your petitioner immediately took the copy of the bill to Mr. Campbell Yerger, his present solicitor, on or about the 7th day of April 1948, which was immediately after and within 24 hours after his last conference with Mr. Surrency referred to above and with Mr. Coleman.

‘ ‘ That your petitioner did not know or dream that any attempt would be taken to take judgment against him in the formal cause #50901 as stated, and he did not know there was any such decree entered until April 10, 1948 when the matter was explained to him by his present solicitor;

“That he did receive from the Clerk of the Court, a bill of costs, which bill of costs was mailed from the Chancery Court Clerk’s Office on April 2, 1948 to him; that he took this bill of costs immediately up to Mr. Surrency and it was following this that he had the conference with Mr. Surrency and found out that Mr. Sur-rency couldn’t represent him; that he had never heard of it before.”

We are of opinion that this assignment must be sustained.

“The petition discloses no ground of relief upon the facts stated. It is to be presumed that they are stated as strongly and fully in favor of the petitioners as the truth will warrant, and yet unless we supply by construction allegations wholly omitted, we cannot find any ground upon which the relief asked for can be granted.” Thruston v. Belote, 59 Tenn. 249, 251.

In quite similar situations our Supreme Court has held that this is not within the sense of “accident”, “mistake” or “surprise”, and, of course, no fraud is charged.

We are aware of the statement in Bolling & Power v. Huddleston & Turner, 8 Tenn. Civ. App. 339, where it is said that each case depends upon its own facts and where a party appears to have a meritorious defense, he is entitled to as favorable construction of his allegations as is consistent with the statute providing for the writ.

Yet two things must be shown in the petition (1) a meritorious defense and (2) surprise, accident, mistake, or fraud without fault of petitioner. The want 'of either is fatal. This and other grounds are set out in Gibson’s Suits in Chancery, Section 1255.

The allegations of this petition simply show that he promptly employed an attorney and expected him to handle his defense, that the attorney filed n'o pleadings nor did anything but later turned back the matter to the client and sent him to another lawyer who was no longer practicing and he then went to a third lawyer who filed the petition herein.

The case falls within Inman v. Fox, 1 Tenn. App. 119, 126-128 and some of the cases therein cited on page 128.

In Gallena v. Sudheimer et al., 56 Tenn. 189, 190, virtually the same facts as to employment of an attorney and his failure to file pleas were held insufficient.

See especially Jackson v. Milsom & Coe, 74 Tenn. 514, as to diligence of the party; and Dinsmore v. Boyd, 74 Tenn. 689, 696, where several cases are discussed, all holding diligence to have been lacking.

It is apparent from'all cases where relief has been granted that there were some mitigating circumstances such as reliance of the client or his attorney on the representations of the opposite party or his counsel where the reliance was justified or was fraudulently induced, or where the parties made a mutual mistake, or misunderstood one another as in Crawford v. Williams, 31 Tenn. 341, 344; or the defanlt judgment was entered through error or at an improper time. Bnt as said in the Inman case, snpra, the rule has been enforced strictly in the absence of proper mitigating circumstances. Mere failure of the party or his counsel to act, or simply mistaking the time for pleading or the time for trial, have never been held sufficient.

See discussion in Mitchell v. Porter, 26 Tenn. App. 498, 522, 173 S. W. (2d) 443, as to the duty of exercising diligence, when one is a party, or an attorney of record for the party in taking note of all proceedings in the case.

We sustain the assignment, reverse the decree and dismiss the petition for writ of error at the costs of appellee.

Anderson, P. J., and Baptist, J., concur.