104 Tenn. 382 | Tenn. | 1900
This is a petition for writ of error corana nobis in tbe Circuit Court of Gibson County. Its object is to annul, avoid, and vacate a judgment for divorce pronounced in tbat
This ruling of tbe learned trial Judge was based upon tbe provisions of tbe statute (Shannon, § 4890) in tbe following words:
“In divorce cases an appeal shall be tbe only mode of. revising errors. And upon the further ground that the writ contradicted tbe record of the former suit and was insufficient in law.”
The principal allegations of the petition upon which the right to relief is based, are that tbe petitioner and defendant thereto were married in 1894; that he was then, and bad ever since been, a citizen of Indiana and not a citizen or resident of Tennessee, though be had been in Tennessee for some. two years teaching, but all the while intending to return to Indiana; that he did return to that State in September, 1896, his wife returning with him, and where they continued to reside until April, 1899, when she left him and came to Tennessee, and at once filed her bill for divorce. It was charged that the
The first assignment is that the trial Judge erred in sustaining the motion to dismiss the petition upon the ground that the matter was controlled by statute (Shannon, §4890).
The contention for defendant in this Court is that a writ of error comm nobis is a mode of revising errors and therefore falls within the letter and spirit of the statute above referred to. Chapter 14 of Shannon’s compilation is headed “Of the proceeding for the correction of errors.”
■'‘Errors not embraced by the provisions of the Code in regard to amendments may be corrected in one or more of the following modes:
■‘1. By writ of error coram nobis.
“2. By rehearing, review, or new trial
“3. By certiorari.
“4. By appeal.
“5. By appeal in the nature of a writ of error.
“6. By writ of error.”
. The next article, being Article 11 under this chapter, treats fully of the writ of error coram, nobis and the cases in which it may be brought and the manner in which it may be prosecuted. It thus appears to be treated by statute as one of the modes provided for the revising or correcting of errors.
Section 4838 provides that it may lie in the County, Circuit, or Chancery Court, and by § 4S39 within one year from the rendition of the judgment. By § 4844 the relief under this writ is confined to errors of fact of which the party seeking relief had no notice, or which he was prevented by disability from showing or correcting, or in which he was prevented from making defense by surprise, accident, mistake or fraud, without fault on his part. And by § 4845 instances and examples are given of cases in which the
It has been held by this Court that the effect, of § 4390. supra, is to prevent the review of a divorce decree by writ of error. Parmenter v. Parmenter, 3 Head, 225; McBee v. McBee, 1 Heis., 561.
Nor can a decree for divorce be opened under the broad provisions of § 6189, Shannon’s Code, giving nonresident defendants time after service of copy of decree - to defend against it. Parmenter Cold., 545: McBee v. McBee, 1 Heis., 561.
The argument is made with much plausibility and force that a writ of error coram nobis is, in effect, a new suit and not a mere proceeding to correct or revise errors; that the object of this proceeding is to amend and set aside a former judgment, and attention is called -to the fact that in order to obtain it a petition must be filed, a bond for cost must be entered into, ten days’ notice must be given, errors must be assigned, that the judgment is final as relates to the former judgment and suit. Crawford v. Williams, 1 Swan, 341.
It is spoken of in many of ofir cases as a new suit (Crawford v. Williams, 1 Swan, 341; Elliott v. McNairy, 1 Bax., 343; Anderson v.
When filed in the Chancery Court it is treated as the equivalent of an original bill in the nature of bills of review. Gibson’s Suits in Chancery, Sec. 1092; Leftwick v. Hamilton, 9 Heis., 310.
The fact that in effect it is a new suit, to be tried de novo upon the case as made out by the petition and proof thereunder, and not upon the original record, is not conclusive that it is not a mode of correcting errors. All appeals from Justices to the Circuit Court- are tried de novo in that Court, and still such appeal is clearly a mode of correcting errors, and so with new trials granted in the Court below, and still it is a mode of • correcting errors. Nor is it conclusive upon this feature that a petition must be filed and bond given for cost. This is the practice when applying for writ of error to this Court when the object is to correct and -revise errors of law in the Court below. So, also, notice must be given in case of writs of error coram nobis alike in each, and upon final hearing the adjudication is conclusive in each. The material difference between writs of error and writs of error
This does not leave the aggrieved party without remedy. The power and jurisdiction of the Chancery Court to set aside decrees obtained by fraud, even in cases of divorce, has been recognized and enforced in a number of cases involving divorces in foreign Courts. Gettys v. Gettys, 3 Lea, 260: Chaney v. Bryan, 15 Lea, 589; Thoms v. King. 11 Pick., 60; Letowich v. Letowich, 21 Am. Rep., 145; Hood v. State, 26 Am. Rep., 21; Sewall v. Sewall, 23 Am. Rep., 299.
Nor do we mean to say that a judgment may not be set aside for fraud under the proceeding for writs of error coram nobis. The statute expressly provides that it may, and it does not restrict the remedy to cases pending in the Chan-
It is said, however, that even if the judgment for divorce may not be vacated by this proceeding, still it may be reversed so far as it gives alimony and awards the custody of the children. As to the question of alimony, it is not here involved, as the original judgment gives no alimony. As to the custody of the ■ children, we are cited to no authority which sustains the contention made.
The case of McBee v. McBee, 1 Heis., 561, holds that the statute (§ 4890) does not apply to judgments or decrees for alimony, because there is no necessary connection between divorce and alimony, inasmuch as alimony may be granted when no divorce is decreed, and a divorce may be granted without alimony. Hence, in that case, it was held that a writ of error would lie in cases where questions of alimony were involved, but not where the grounds of divorce alone were attacked.
We think that the custody of the ■ children is so interwoven with and dependent upon the right of divorce that the latter could not be revised and corrected without at the same time inquiring into