Summary
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.
Summary of this case from Pairamore v. PairamoreOpinion
Opinion filed April 15, 1968.
1. CERTIORARI
The 1950 modification of statute governing enforcement of judgments of Court of Appeals providing that judgments only become enforceable after expiration of time for filing for writ of certiorari with Supreme Court and time during which such petition remains undisposed of was designed to relieve petitioners for certiorari to review Court of Appeals' judgments from task of applying directly to justice of court for writs of supersedeas and to relieve justice of task of making preliminary review of record which would be necessary in every petition for review by certiorari. T.C.A. sec. 16-411.
2. CERTIORARI
Where Court of Appeals affirmed decree of chancery court enjoining defendant from competing with plaintiff in certain respects, and defendant petitioned Supreme Court for certiorari and supersedeas to review such judgment, supersedeas was unnecessary, as judgment of Court of Appeals only became final for purpose of enforcement by orders of that court after expiration of time for filing petition for writ of certiorari with Supreme Court and time during which such petition remained undisposed of. T.C.A. sec. 16-411.
3. APPEAL AND ERROR
Supreme Court has power, where one enjoined by judgment of Court of Appeals, either mandatorily or by prohibition, threatens or commits acts of hurtful nature, to enforce injunction ordered by Court of Appeals either under statute or by reason of its inherent power to make orders necessary to orderly and just appellate review. T.C.A. secs. 16-411, 23-1911.
4. INJUNCTION
Court of Appeals, after expiration of time for review, can punish injunction violator for contempt of that court.
5. CERTIORARI
Decree of Court of Appeals is not vacated by petition for certiorari, but rather it is simply unenforceable by that court during period mentioned by statute. T.C.A. sec. 16-411.
FROM DAVIDSONBASS, BERRY SIMS, Nashville; J.O. BASS and J. BRADBURY REED, of counsel, for petitioner.
K. HARLAN DODSON, HOOKER, KEEBLE, DODSON HARRIS, Nashville, of counsel, for respondent.
Suit to enforce covenant not to compete. The Chancery Court, Davidson County, Ned Lentz, Chancellor, enjoined defendant from competing with plaintiff in certain respects, and defendant appealed. The Court of Appeals, Middle Division, affirmed, and defendant petitioned for certiorari and supersedeas. The Supreme Court, Humphreys, Justice, held that supersedeas was unnecessary in that judgment of Court of Appeals only became final for purposes of enforcement by orders of that court after expiration of time for filing petition for writ of certiorari with Supreme Court and time during which such petition remained undisposed of.
Order accordingly.
MEMORANDUM
At Mutual's suit to enforce a covenant not to compete, Ramsey was enjoined from competing with Mutual in certain regards. On appeal, the Court of Appeals, Middle Division, 58 Tenn. App. 164, 427 S.W.2d 849, affirmed the lower court's decree, and reinstated the injunction, which had been treated as vacated by the appeal. Now, Ramsey has petitioned this Court for certiorari and supersedeas to review this judgment. Upon presentation of this petition to the writer, the point was made by petitioner that by force of T.C.A. sec. 16-411 a supersedeas is unnecessary, as the judgment of the Court of Appeals only becomes final for purposes of enforcement by orders of that court after the expiration of the time for filing petition for writ of certiorari with this Court, and the time during which such petition remained undisputed of. I have concluded the point is well made.
Chapter 100 of the Acts of 1925, creating the Court of Appeals, in sec. 13 provided that the judgments of the Court of Appeals "unless superseded, reversed, or modified by the Supreme Court, shall, after expiration of thirty days from final decree as hereinafter defined, be executed by all necessary and proper writs."
By the Code Supplement of 1950, sec. 13 of Chapter 100 was modified so as to remove from it the provision with respect to judgments becoming effective after thirty days, and the statute was rewritten, at it has since remained, so as to provide that the judgments of the Court of Appeals only become enforceable after expiration of the time for filing for writ of certiorari with this Court and the time during which such petition remains undisposed of.
It is evident the statute was modified to relieve petitioners for certiorari to review Court of Appeals judgments from the troublesome task of applying directly to a Justice of the Court for writs of supersedeas, and to relieve the Justice of the more troublesome task of making a preliminary review of the record which would be necessary in every petition for review by certiorari.
It is within the recollection of Chief Justice Burnett that the Code Commission in charge of the 1950 modification, modified sec. 13 for the purpose suggested.
Consistently, it has been the general practice since the 1950 modification not to apply for or to issue supersedeas except in special cases; and in view of the concurrent holding of the Chancellor and the Court of Appeals, this is not a case in which the Court would be justified in issuing supersedeas.
The argument of respondent that this interpretation of the statute leaves one enjoined by a judgment of the Court of Appeals, either mandatorily or by prohibition, at liberty to commit, possibly, acts of a serious and hurtful nature, raises an unfounded fear. This Court has power where a violation of such a nature is threatened or committed, to enforce an injunction ordered by the Court of Appeals, either under T.C.A. sec. 23-1911 or by reason of our inherent power to make orders necessary to an orderly and just appellate review. Chaffin, et al. v. Robinson, et al., 187 Tenn. 125, 213 S.W.2d 32.
Additionally, the Court of Appeals, after the expiration of the time for review, can punish the injunction violator for contempt of that court. The decree of that Court is not vacated by the petition for certiorari, it is simply unenforceable by that court during the period mentioned in T.C.A. sec. 16-411. Chaffin et al. v. Robinson et al., 187 Tenn. 125, 213 S.W.2d 32.
BURNETT, CHIEF JUSTICE, and DYER, CHATTIN and CRESON, JUSTICES, concur.