Ellenburg v. Hartford Accident & Indemnity Co.

PUETEAE, J.

In this case a petition for a common law writ of certiorari is presented to the Court by the petitioners, Guy Ellenburg and State of Tennessee for the use of Guy Ellenburg.

The brief filed by petitioners’ counsel contains an accurate statement of the case, which is not controverted by counsel for the respondents and, therefore, we adopt the statement as follows:

“The petitioners here are the plaintiffs in the action pending in the court below. Five other defendants in the action filed general issue pleas in the court below (Tr. 41) and are therefore not respondents here.

The individual petitioner, a Greeneville restaurant and newsstand operator, was the successful plaintiff in error in the case of Ellenburg v. State, 215 Tenn. 153, 384 S.W.2d 29 (1964), wherein the Supreme Court de-dared unconstitutional the former Tennessee obscenity statute, T.C.A. sec. 39-3001. In the present action he seeks damages in the first seven counts of his declaration (Tr. 5-28) from four Greeneville policemen and five state officials for what he contends were their joint torts against him during the events leading1 up to the abovementioned decision. In the same action, by Counts Eight (Tr. 22) and Nine (Tr. 31), he seeks recovery on the two official bonds covering four of the five state officials. The corporate respondent is named defendant in these two counts as surety on both bonds. The alleged breaches of the bonds include the allegedly tortious acts on which the first seven counts are founded.

To this declaration, the five state officials entered a joint general issue plea of not guilty as to all counts (Tr. 41). The four Greeneville policemen, the individual respondents herein, entered a plea in abatement (Tr. 42) on grounds the exclusive venue for this action as to them is Greene County because both they and the plaintiff reside there.

The surety on the official bonds, the corporate respondent here, demurred (Tr. 43) to the eighth and ninth counts of the declaration separately on grounds each of these counts was misjoined with other counts naming different defendants on different causes of action.

The demurrer was sustained after hearing September 10, 1965 (Tr. 42). The plea in abatement was sustained after hearing September 17, 1965 (Tr. 50)-,

This petition seeks a review and reversal of these rulings. ’ ’

The respondents A. L. Shepherd, Kenneth E. Eollins, Bobby Gene Wells, and Marcus Higgins have filed a motion to dismiss the petition for certiorari upon the following grounds:

“ (1) The sustaining of the plea in abatement filed by these respondents in this case is not reviewable by the common law writ of certiorari under the provisions of Tennessee Code Annotated sec. 27-801; and

(2) in any event, the trial court acted correctly in sustaining these respondents’ plea in abatement.”

The respondent, Hartford Accident & Indemnity Company, has likewise filed a motion to dismiss the petition upon the following grounds:

“1. The order of the trial court sustaining the demurrer of the Eespondent is not reviewable by this Court by Writ of Certiorari.

2. There was no error in the action of the trial court in sustaining the demurrer of the Eespondent.”

This petition and the motions to dismiss same were set for hearing and the transcript and briefs were filed. The petition and motions to dismiss have been presented and argued before the entire membership of this section of the Court.

We will first consider the motions to dismiss and since each motion involves substantially the same questions, both were submitted together and will be so disposed of in this opinion.

Five other defendants in the suit filed general issue pleas in the court below and, so far as the transcript discloses, the suit is still pending in the Circuit Court of Davidson County against these five other defendants.

It has been, repeatedly held by this Court and our Supreme Court that the interlocutory orders of a trial court, or orders of such court prior to final detemination of the case therein, cannot be reviewed by common law-writ of certiorari (which was adopted in statutory form in T.C.A. 27-801) unless each of two requirements exist.

First, that the trial court has acted illegally or without jurisdiction; and second, that there is no plain, speedy or adequate remedy other than the writ of certiorari. Hewgley v. Trice, 207 Tenn. 466, 340 S.W.2d 918; McGee v. State, 207 Tenn. 431, 340 S.W.2d 904; Helton v. State, 194 Tenn. 299, 250 S.W.2d 540; State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 192 S.W. 931.

The rule is clearly and emphatically stated in State ex rel. McMorrow v. Hunt, supra, in the following language :

“ ‘It must be borne in mind that the functions of certiorari are simply to ascertain the validity of proceedings before a court of justice, either on the charge of their invalidity, because the essential forms of the law have not been observed, or on that of the want of jurisdiction in the court entertaining them. The writ has never been employed to inquire into' the correctness of the judgment rendered where the court had jurisdiction, and was therefore competent. Hence it has been held that the supervisory jurisdiction of the court on a certiorari must be restricted to an examination into the external validity of the proceedings had in the lower court. It cannot be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the case. The supervisory powers of the court should not be confounded with its appellate jurisdiction. ’ ” State ex rel. McMorrow v. Hunt, supra, pp. 250, 251, 192 S.W. p. 933.

The petitioners’ counsel cite Bales v. McPhetridge, 209 Tenn. 334, 354 S.W.2d 60, in support of their insistence that writ of certiorari should issue in this case to review the action of the trial court, but the Bales case did not involve certiorari and, therefore, it is not in point. That case involved a petition for writ of error presented to the Supreme Court, wherein that Court held, in an opinion by Mr. Justice Felts, the jurisdiction of the case was properly in the Court of Appeals and was accordingly transferred to this Court.

Petitioners’ counsel also insist that this Court may, in its discretion, grant the writ under Section 27-802(3) and (5), Tennessee Code Annotated. This entire code section is as follows:

“27-802. Cases in %ohich writ lies. — Certiorari lies: (1) On suggestion of diminution; (2) where no appeal is given; (3) as a substitute for appeal; (4) instead of audita querela; (5) instead of writ of error.” (italics added)

However, we find no merit in this insistence, because no final judgment has been entered in the trial court. (See opinion on petition to rehear in State ex rel. McMorrow v. Hunt, supra.)

For the foregoing reasons, the motions to dismiss the petition for certiorari are sustained upon the first ground thereof.

We will not discuss the merits of the action of the trial court at this time, because any discussion thereof at present would be premature.

The case will be remanded to the Circuit Court of Davidson County, for further appropriate proceedings. The costs incident to the petition for certiorari are adjudged against the petitioners.

Shriver and Humphreys, JJ., concur.