
    Bell et al. v. Smith. Smith v. Bell et al.
    
    
      (Nashville,
    
    December Term, 1946.)
    Opinion filed May 31, 1947.
    
      James W. Stokes, of Nashville, for Bell.
    Z. Alexander Looby, of Nashville, for Smith.
   Mr. Justice G-ailor

delivered the opinion of the Court.

Two cases are presented on this appeal and for clarity we refer to them as they were styled in the Courts below. Tbe case of Smith v. Bell rises out of steps taken by tbe plaintiff in tbe case of Bell v. Smith. In tbe General Sessions Court of Davidson County in tbe latter case, on August 8, 1946, judgment was rendered against Smith for tbe possession of certain premises in Nashville which be bad theretofore rented from Jessie Bell. On August 9 be obtained a fiat on petition for certiorari, without supersedeas, for said cause to tbe Circuit Court and filed tbe petition for certiorari on tbe following day. Tbe respondent filed motion to dismiss on tbe ground that certiorari bad been filed within the time allowed for appeal and that in form, the pleading was not tbe “cer-tiorari and supersedeas” prescribed in Code, sec. 9266.

On tbe 19th and 20th of August, 1946, after tbe petition for certiorari was filed, plaintiff, complying with section 9265 of tbe Code, gave bond, sued out a writ of possession and bad defendant evicted from the premises involved.

Prom tbe judgment of tbe Circuit Court dismissing petition for certiorari defendant Smith, after bis motion for new trial was overruled took tbe oath for poor persons and filed tbe record for review in this Court on tbe authority of tbe following part of tbe order overruling motion for new trial:

“It Is, Therefore, Ordered, Adjudged That defendant’s motion be, and tbe same is hereby overruled and tbe defendant is allowed thirty (30) days within which to perfect bis appeal to tbe Supreme Court of Tennessee. ’ ’ We consider tbe assignments of error hereinafter.

On August 21, 1946, after tbe writ of possession bad issued and been served as stated, Smith sued Jessie Bell, J. W. Frierson, Jessie Bell’s real estate agent, and Hugh Freeman, Clerk of tbe Court, for tbe wrongful and unlawful suing out, issuance and service of tbe writ of possession, it being Smith’s contention that despite the fact that no supersedeas had been prayed or granted the certiorari was, by a proper construction of Sec. 6, Chapter 12 of the Private Acts of 1937, the Davidson County General Sessions Court Law, effective to remove the case entirely from the General Sessions Court, and that, therefore, the issuance of the writ of possession and eviction of Smith after the filing of the petition for certiorari, were unlawful. Damages were fixed in the declaration at $5,000.

Demurrers to the declaration were filed by all the defendants and sustained by the Trial Court. After motion for new trial was overruled 'Smith has perfected his appeal to this Court. Motions to dismiss the appeals have been filed in both cases on the allegation that the appeals were neither prayed nor authorized, but the record contradicts the allegation. The appeals were perfected as authorized by the Judge of the Circuit Court at page 16 of the transcript of Bell v. Smith, and at page 13 of the transcript of Smith v. Bell. The motions to dismiss the appeals are, therefore, overruled.

The plaintiff in error, Smith, admits that no super-sedeas of the judgment in the General Sessions Court was granted but he insists that he filed petition for cer-tiorari under section 6 of Chapter 12 of the Private Acts of 1937, and that under a proper construction of that section no supersedeas was necessary to remove the cause entirely from the General Sessions Court and thereby to terminate entirely the jurisdiction of that Court over the subject matter of the litigation. Section 6 of the Private Acts of 1937 is as follows: “Be it further enacted, That the rules of pleading and practice, form of writs and process, stay of and appeals from judgments in civil cases of said Court shall be same as of Justices of the Peace, except no appeal shall he granted from a judgment dismissing* a suit or judgment which does not exceed the amount of $50.00, exclusive of interest and cost; however, a new trial of said excepted cases may be had and with as full rights as if on appeal to the Circuit Court, provided a petition for a writ of certiorari showing merit and sworn to has been filed with the Circuit Court within ten days from the date of the judgment complained of, and the writ has been granted. No execution shall issue during said period of ten days unless said writ has been previously denied.”

In the case before us the judgment was for plaintiff, Jessie Bell, for possession of the premises in litigation. Clearly this was neither a judgment of dismissal nor a judgment for money in an amount less than $50. We conclude, therefore, that the provision for cer-tiorari in section 6 is no authority for the pleading as it was filed here. There is no insistence that any other section or provision of the Act of 1937 authorizes the certiorari, so that there is no doubt that the general Code provision for review of cases of forcible entry and unlawful detainer apply. These are sections 9263, 9266.

It has long been recognized as the law in this State that an appeal by defendant from an adverse judgment under Code, sec. 9263 does not forestall the writ of possession. The writs of certiorari and supersedeas under Code, sec. 9266 are the only means of reaching that result. “Our statutes (secs. 9263-9268 of the Code) provide two alternative remedies for having a justice’s judgment in an action of forcible entry and detainer, forcible detainer, or unlawful detainer retried in the circuit court. One remedy is by appeal, and the other is by certiorari and supersedeas. If Robertson had pursued the remedy of appeal, he could not have kept possession of the premises during the litigation; but the insurance company, upon giving a bond in double the value of one year’s rent, as required by see. 9265 of the Code, could have got possession immediately. But by pursuing the remedy of certiorari and supersedeas, and giving the bond to cover costs, damages and the value of the rent during the litigation, as required by sec. 9266, he was enabled to keep possession until the end of the litigation in the circuit court. Ammons v. Coker, 124 Tenn. 676, 139 S. W. 732.” Robertson v. Penn. Mut. Life Ins. Co., 22 Tenn. App. 387, 391, 123 S. W. (2d) 848, 850.

There is, we think, no conflict between section 6 of the Private Acts and the foregoing provisions of the general law. Irreconcilable conflict was necessary to support a construction of repeal of the general law by implication. County Board of Highway Com’rs v. Wilde, 179 Tenn. 141, 145, 163 S. W. (2d) 329, and cases cited there.

The case of Ammons v. Coker, 124 Tenn. 676, 139 S. W. 732, presented a question of practice identical with that before us. The unsuccessful defendant in an action in forcible entry and unlawful detainer undertook to have a review by filing petition for certiorari within the two days allowed for an appeal. In dismissing the certiorari the late Chief Justice Green said for 'the Court: “It is well settled by numerous decisions in this state that when the writ of certiorari is sought to be used as a substitute for an appeal, the party applying must show in his petition some good and sufficient reason for not taking an appeal, and when such good and sufficient reason is not shown, it is proper to dismiss the writ. Caruther’s History of a Lawsuit (Martin’s ed.), sec. 375; Hardin v. Williams, 5 Heisk. 385; McCor- mack v. Murfree, 2 Sneed 46; Hale v. Landrum, 2 Humph. 32; Copeland v. Cox, 5 Heisk. 171; McMurry v. Milan, 2 Swan 176, and numerous other eases.” Ammons v. Coker, 124 Tenn. 676, 682, 139 S. W. 732, 733.

Under this authority the Trial Judge correctly dismissed the certiorari on motion of plaintiff in the case of Bell v. Smith, and the assignment on that action is overruled.

Further, since no supersedeas was obtained under Code, sec. 9266, and since plaintiff complied with all requirements of Code sec. 9265 before obtaining the writ of possession and having defendant evicted we think the General Sessions Court had jurisdiction to issue the writ (Robertson v. Penn. Mut. Life Ins. Co., supra), and the Trial Judge correctly sustained the demurrers in Smith v. Bell.

All assignments of error are overruled and the judgments in both cases are affirmed.

All concur.  