Opinion
Opinion filed June 7, 1952. Rehearing denied August 15, 1952.
1. CERTIORARI.
Neither the Supreme Court nor any member thereof has any authority to grant extension of time within which to file petition for certiorari beyond 90 days from the entry of decree on the opinion of the Court of Appeals, and this is true even though extension of time has in fact been granted after the 90 day period since members of Supreme Court do not know and have no way of checking on time of entry of decree of Court of Appeals or its opinion at time such extension is granted (Code, sec. 10629).
On Petition to Rehear.2. CERTIORARI.
Where decree on the opinion of the Court of Appeals was filed on December 10, 1951, and on March 10, 1952, petition for certiorari was placed in mail and opposing counsel was given notice of intention to file petition as of March 15, 1952, and petition was in fact filed on March 15, 1952, such petition was filed four days later than the absolute limit of 90 days beyond filing of decree and would be dismissed (Code, sec. 10629).
3. CERTIORARI.
Under Rules of Supreme Court, computation of date for filing petitions for certiorari and supersedeas must begin from date of filing of decree of the Court of Appeals, and not from date when minutes of the Court of Appeals are signed (Rules of Supreme Court, rule 11; Code, sec. 10629).
FROM FAYETTE.C.A. STAINBACK, of Somerville, E.J. HARRIS, of Bolivar, and CHAS. S. SEAY, of Memphis, for petitioners.
TROY W. TOMLIN, of Somerville, and WILLIAM A. PERCY, of Memphis, for respondents.
Suit to remove cloud on title by P.R. Beasley against Ed Parham, and others, wherein the Chancery Court, Fayette County, W.W. HERRON, Chancellor, held that the land belonged to Beasley and that certain deeds were a cloud on his title, and the Court of Appeals affirmed this conclusion. The Court of Appeals rendered its decision on November 29, 1951; the decree on the opinion of Court of Appeals was filed on December 10, 1951; members of the Supreme Court granted extensions of time to file petition for certiorari up to and including March 15, 1952, when said petition was filed. Beasley moved to dismiss the petition for certiorari. The Supreme Court, BURNETT, Justice, held that computation of the date for filing petition for certiorari begins from the date of the filing of the decree of the Court of Appeals and that neither the Supreme Court nor any member thereof had any authority to grant extension to file petition for writ of certiorari beyond 90 days from the entry of such opinion.
Petition dismissed.
This is a petition for certiorari in a suit, to all intents and purposes for ejectment, though the suit was filed to remove a cloud on the title of the Beasley's by reason of certain alleged deeds under which the petitioners were attempting to cut the timber and to acquire the land claimed by the Beasley's south of the Wolf River. The Chancellor and the Court of Appeals concurred in the facts and the law, as construed by them, and held that this land belonged to the Beasley's and that these deeds were a cloud on the Beasley's title.
The Court of Appeals rendered its decision on November 29, 1951. Members of this Court granted three extensions of time up to and including March 15, 1952, in which to file a petition for certiorari. The petition for certiorari was filed on March 15, 1952, and a reply filed thereto on March 30, 1952. Code Section 10629 provides that petitions for certiorari may be filed with us, from decrees of the Court of Appeals, within 45 days or 90 days after the decree of the Court of Appeals if extensions are granted. This Court nor no member thereof has any authority to grant extensions beyond 90 days from the entry of the decree of the Court of Appeals. This Court in James v. Kennedy, 174 Tenn. 591, 129 S.W.2d 215, 216, speaking through Chief Justice Green said:
"We may refer in this connection to Section 10629 of the Code regulating the right of removal to this court of cases determined in the Court of Appeals. The statute provides that there shall be no other method of review except by certiorari and that the time for filing petitions for certiorari shall not be extended beyond ninety days after final judgment of the Court of Appeals. This court has uniformly felt compelled to dismiss appeals and writs of error undertaken by mistaken litigants from judgments of the Court of Appeals, although adverse parties had made no point on the practice and had responded to the assignments of error. So we have felt obliged to dismiss petitions for certiorari filed more than ninety days after the judgments of the Court of Appeals, although adverse parties undertook to waive the statutory requirements."
It would thus seem, and it has been the understanding in the profession and with the members of this Court, it is the clear intention of the legislature in enacting Section 10629, that after this time expires this Court is without jurisdiction. This is true even though an extension of time has been granted within the time beyond the 90 day period. Of course members of this Court who grant extensions of time for filing petitions for certiorari do not know and have no way to check on the time of the entry of the decree of the Court of Appeals or its opinion at the time they grant the extension. For the reasons above the petition for certiorari must be dismissed at the cost of the petitioners.
ON PETITION TO REHEAR
We have before us a forceful, courteous and dignified petition to rehear in this matter. We must adhere to our conclusion as reached in our former opinion.
The petition to rehear contains an affidavit of the clerk which shows that the decree on the opinion of the Court of Appeals, in this cause, was filed on December 10, 1951. On March 10, 1952, the petition for certiorari was placed in the mail and opposing counsel was given notice of the intention to file this petition as of March 15, 1952. The petition for certiorari was filed on March 15, 1952. We think that the governing date is the date that the petition for certiorari is filed which is March 15, 1952 or at least 4 days longer than the day on which it could be filed under the statute. More than 90 days have elapsed since the filing of the decree on the opinion of the Court of Appeals which was December 10, 1951.
By an amendment to the rules as found in 189 Tenn. page 820, it is, "provided the clerks of the respective divisions of the court of appeals shall date the decrees and judgments when filed, and the time for filing petition for certiorari and for supersedeas shall be computed from said date." Rules of Supreme Court, rule 11. Obviously under this rule the date for filing petitions for certiorari and supersedeas must begin from the date of the filing of the decree in the opinion of the Court of Appeals, not the date when the minutes of the Court of Appeals are signed. It thus is forced on us to hold that the petition for certiorari in this cause was not filed in time and must therefore be denied.