Travelers Indemnity Co. v. Callis ( 1972 )

ROY A. MILES, Special Justice

(concurring).

The basic purpose of this concurring opinion is to extend the effect of the court’s ruling beyond the announced purpose. I readily agree that the Court of General Sessions exceeded its jurisdiction and authority by granting defendant’s motion to quash the writ of execution; however, to clarify some apparent confusion as to the authority of the Circuit Court to hear and dispose of said motion on appeal, the opinion of this court should not end with its order of remand. The record clearly reveals that the Circuit Court Judge heard said motion on the merits thereof and agreed with the Judge of the General Sessions that the judgment obtained by Travelers against Callis could not survive the operation of defendant’s discharge in bankruptcy on this debt.

In holding that the Circuit Court had the power to quash the writ of execution if the matter had been presented by the way of writ of certiorari, it would seem futile to hold that the Circuit Court could not exercise the same authority when the question was presented on direct appeal. It is quite well established that the remedy of cer-tiorari is a substitute for appeal and the author of this opinion is not aware of any reason why this controversy should not be put at rest in the Circuit Court, pursuant to the order of remand and the direction of this court. There is no reason to assume that the Circuit Court Judge would view this controversy on remand any differently than he did on appeal from the Court of General Sessions. Indeed, it would seem more expeditious for the entire matter to be terminated in this court instead of following the idle and useless procedure of remanding the cause to the Circuit Court with instructions. This may be accomplished by reversing the Court of General Sessions but affirming the Circuit Court and the Court of Appeals.

It seems appropriate also to observe that this end result could have been accomplished by proceedings in the bankruptcy court to stay further proceedings on the General Sessions Court judgment. Also, it would seem sufficient, but without adjudication here, if defendant, Callis, had sought injunctive relief against Travelers by bill in chancery, against further proceedings to enforce the collection of a debt that had been terminated by defendant’s discharge in bankruptcy. In either or all of these three courses of procedure, the end result would have been the same. Thus I concur with the conclusion of this court in its ultimate effect but dissent insofar as the controversy may be left to further action in the Circuit Court.