Ellenburg v. Hartford Accident & Indemnity Co.

On Petition to Rehear

PURYEAR, J.

On April 4,1966, the petitioners herein filed a petition to rehear, wherein the petitioners insist that this Court overlooked the applicability of the rule of Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012, and also the rule of Medic Ambulance Service, Inc. v. McAdams, Tenn., 392 S.W.2d 103, 111.

Tennessee Central Railroad Company v. Campbell is an eminent domain case, in which the railroad sought to condemn land for railroad purposes. When the proceeding had progressed to the state of an order being entered by the trial Court holding that the railroad had the right to condemn and appointing commissioners to lay off the land condemned by metes and bounds and assess the damages, petition for certiorari was filed.

In that case the Supreme Court held that in such a proceeding there may be two final judgments, which could be reviewed by separate proceedings in error prosecuted at different times, but also expressly held that until the commissioners had filed their report and demand had been made for a trial by jury in court and bond had been filed, the order of taking was not final and reviewable for correction of errors.

In Medic Ambulance Service, Inc. v. McAdams, supra, the Supreme Court upheld the right to review upon *279certiorari tire order of the trial Coart directing the claim agent of defendant to make certain contents of his file available to counsel for plaintiff “for inspection and copy”.

This order was not final and in upholding the right to review it by certiorari the Supreme Court said:

“We think the error here complained of amounted to an illegality which is fundamental, as distinguished from an irregularity, a technical or formal error not affecting jurisdiction or power; and, although not a final order or judgment, is nevertheless, reviewable by the common law writ of certiorari.” (Emphasis supplied.)
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“We conclude the trial judge acted arbitrarily in entering the order without a showing of good cause for the production of the investigation file or any diligence on the part of plaintiff in discovering for himself the material sought for inspection and copying; and in the absence of jurisdiction of the person of Fleetwood at the time the order was made.” (Emphasis supplied.) Medic Ambulance Service v. McAdams, supra, at p. 111.

The distinction between the instant case and the Medic Ambulance Service, Inc., case is obvious, since in the instant case counsel for petitioners does not even insist or contend that the orders which he asks this Court to review are illegal or arbitrary.

We did not overlook either of the foregoing cases in reaching the conclusions set forth in our original opinion, but fully considered them and our original opinion is not in conflict with either of the foregoing cases.

*280It is also insisted in the petition to rehear that the Court overlooked petitioners’ insistence that they could not obtain the remedy sought by them or any other plain, adequate and speedy remedy or relief by means of post-trial proceeding’s. However, we did not overlook this insistence, but we are of the opinion it is not valid and not supported by authority.

The office of a petition to rehear is to call the attention of the Court to matters overlooked, not those things which counsel supposes were improperly decided after full consideration. All of the foregoing contentions are re-arguments of the same propositions which were submitted to the Court and argued in the original brief filed by counsel for petitioners.

In the petition to rehear, counsel for petitioners also insists that his citation of Bales v. McPhetridge, 209 Tenn. 334, 354 S.W.2d 60, was only in support of the preliminary ground work proposition that this Court, rather than the Supreme Court, has revisory jurisdiction of this case and that the Court misinterpreted such citation as being a case on which petitioners relied to support issuance of certiorari.

We accept this explanation of counsel’s reason for citing Bales v. McPhetridge. However, it is not insisted by counsel that it does or should have any effect upon the Court’s conclusions in holding that certiorari is not available as a method of reviewing the orders of the trial Court which petitioners sought to have reviewed in this case.

For the reasons hereinabove set forth the petition to rehear is denied.

Shriver and Humphreys, JJ., concur.