Cates Et Ux. v. City of McKenzie

Mb. Justice Chambliss delivered the opinion of the Court. The bill in this cause, in the nature of a petition for a writ of error coram nobis, sought a review and reversal of a judgment for taxes rendered in the same court and prayed for a supersedeas. Various grounds of relief were set forth in the hill, but these matters are immaterial on this appeal, the chancellor having dismissed the bill upon the ground that the application for the writ had not been made within one year after the rendition of the decree sought to be reviewed. This is the sole question. The tax suit in which the decree was rendered was in the usual “omnibus bill” form, to which complainants, among others, were defendants. The decree in which tax liability against complainants, defendants in that proceeding, was adjudged, and a lien upon their property fixed and order of sale thereof made, was rendered on the 5th day of February, 1937. This proceeding *315 seeking a writ of error coram nobis was not begun until December 19, 1938. Code, section 8972, reads as follows: “Tbe writ of error coram nobis may be bad witbin one year from tbe rendition of tbe judgment, by petition presented to tbe judge at chambers or in open court, wbo may order it to operate as a supersedeas or not.” In Elliott v. McNairy, 60 Tenn. (1 Baxt.), 342, 344, it was held that this writ “can only be bad within a year after tbe rendition of tbe original judgment.” Other cases are to tbe same effect. Cain v. Cocke, 69 Tenn. (1 Lea), 288. Tbe time of “rendition” is tbe time of announcement, “in a conclusive manner and with decisive effect,” of a judgment, as distinguished from entry thereof, which may be a later date. Jackson v. Jarratt et al., 165 Tenn., 76, 52 S. W. (2d), 137, 138. Tbe statute expressly relates tbe running of tbe limitation to tbe time when tbe challenged judgment is “rendered,” when the controverted issues are disposed of. However, appellants insist that this decree of February 5, 1937, was not a final decree; that it ordered a sale of tbe property in enforcement of tbe lien, and that a subsequent decree entered on tbe 2nd day of August, 1938, confirming tbe report of sale, was- tbe final decree, from which an appeal was permissible; that this being tbe final decree in tbe cause, tbe limitation of one year fixed by tbe statute witbin which tbe writ of coram nobis must be applied for runs from that date. Tbe general expression in Gibson’s Suits in Chancery, section 558, to tbe effect that a decree is not final which provides for an accounting, or a sale, or a partition, etc., and cases cited under that section, are relied on to sustain tbe insistence that tbe decree of August 2, 1938-, is tbe final decree in *316 this cause, and it is urged that this is the date from which the one year limitation is to he computed. It may be conceded that there is plausibility in this insistence, but, in the first place, we are inclined to the view that the decree of February 5, 1937, was a final decree — "the rendition of the judgment,” in the meaning of this statute — since it terminated the litigation on the merits of the case and left nothing to be done, except the ministerial act of sale in enforcement of a specific lien fixed by statute. The rights of the parties were finally settled and it remained only to enforce the decree. Notes to Section 22, under Appeal and Error, Volume 2, American Jurisprudence, cite numerous expressions of the United States Supreme and other courts to this effect. Moreover, it has been observed that the language of the statute is "within one year from the rendition of the judgment;” and a distinction may well be taken between the date of the rendition of a judgment and the date of a final decree in the technical sense. The intent of the statute was evidently to limit the right to proceed thereunder to one year from the time when the matters complained of in the petition for review had been considered and adjudicated, having in mind that such proceedings should be brought before such a lapse of time as would make it unlikely that witnesses could be reproduced and the facts correctly reviewed. The principle is the same as that applicable to statutes of limitation generally. We think it is apparent that the intention of the statute is to restrict the bringing of this proceeding to within one year from the time that the judgment that is sought to be reviewed was rendered. It is obvious that the matters sought to be reviewed in this case are those adjudicated in the decree of the chancellor entered on the 5th day of February, 1937, and not in the merely formal de *317 cree of August 2, 1938, confirming the master’s report of sale, to which, no exceptions were filed and which was evidently a pro forma matter merely. It results that there was no error in the decree of the chancellor dismissing the petition in this cause because filed too late, and his judgment is affirmed.