# Hamby v. Northcut > Court of Appeals of Tennessee · October 12, 1940 · 25 Tenn. App. 11 URL: https://www.frixlaw.com/law-library/cases/3893592 ## Case - **Full name:** HAMBY Et Al. v. NORTHCUT Et Al. - **Court:** Court of Appeals of Tennessee - **Decided:** October 12, 1940 - **Citations:** 25 Tenn. App. 11; 149 S.W.2d 484; 1940 Tenn. App. LEXIS 87 - **Precedential status:** Published - **Opinion:** Addendum by Faw - **Judges:** Faw, Crownover, Felts - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3893592 ## Opinion text On Petition for Eehearing. FAW, P. J. The Chancery Court dismissed the bill of the complainants in this case at their cost, and all of the complainants (ten in number) appealed to this court. By decree of this court, entered pursuant to a written opinion filed on October 12, 1940, the appeal of J. E. Hamby, one of the complainants below, was dismissed (because of his failure to perfect his appeal) and the decree of the Chancery Court dismissing the bill of all the other complainants was affirmed. Thereafter a petition for a rehearing and for additional findings of facts was filed on behalf of the appellants, including J. E. Hamby, and the case is now before us for the consideration and disposition of that petition. We have attentively read, re-read and considered the petition, and we have found therein nothing material to the determination of the issues in this case which was not carefully considered by this court in arriving at the conclusions stated in our former opinion. Aside *26 from the dismissal of the appeal of J. R. Hamby, substantially all the propositions advanced in the petition for a rehearing were presented and argued in the former brief for appellants, and the full time prescribed by the rules was allowed to, and consumed by, counsel in oral argument at the bar. We are asked in the petition to “refer to pages 5, 6, 7, 8 and 9 of brief of complainants’ counsel and read and consider the authorities therein referred to and make a different and additional finding of fact from what this court has found on page 10 and 15 in fourth paragraph in which the five assignments are overruled. ’ ’ All of the authorities cited in the brief for complainants above mentioned (which included twenty-eight reported Tennessee cases and some additional citations to the Code, Gibson’s Suits in Chancery, Cyc. and Ruling Case Law) were carefully examined prior to, and in the course of the preparation of, our former opinion. In the opinion in the case of Louisville & N. Railroad Co. v. Fidelity & Guaranty Company, 125 Tenn., 658, 691 , 148 S. W., 671 , 680, the court said: “A petition for rehearing should never be used merely for the purpose of rearguing the case- on points already considered and determined, unless some new and decisive authority has been discovered, which was overlooked by the court. The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration.” See, also, Melody v. Hamblin, 21 Tenn. App., 687, 705 , 115 S. W. (2d), 237 . The appeal of J. R. Hamby was dismissed on motion of the appellees (which motion was filed in writing on January 26th prior to the hearing of the case on February 27, 1940), for the reason that he was attempting to prosecute his appeal on the pauper’s oath, when his testimony in the record disclosed the fact that he is a non-resident of the State of Tennessee, and the oath which he filed did not state that he is a resident of Tennessee. It is conceded in the petition that, in this State, a non-resident is not entitled to prosecute an appeal in forma pauperis; and there is nothing in the cases of Andrews v. Page, 2 Heisk., 634, 641 , and Morris v. Smith, 11 Humph., 133 (cited in the petition), which conflicts with our ruling in the instant case that the appeal of J. R. Hamby was not perfected, and must be dismissed. The question for decision in Andrews v. Page, supra, was not the same, nor analogous to, the question as to the right of J. R. Hamby, a non-resident, to prosecute his appeal in forma pauperis. The generality of the language used in an opinion is always to be restricted to the case before the court, and it is authority only to that extent. Only the points in judgment arising in a particular case before the court are precedents for future decisions. Burns v. Duncan, 23 Tenn. App., 374, 388 , 133 S. W. (2d) 1000 , and cases there cited. *27 The appellant in the case of Morris v. Smith, supra, upon the dismissal of his appeal, “sued out a writ of error,” and at first sought to prosecute same upon the pauper’s oath, but later “filed with the Clerk his bond with security for the prosecution of his writ of error.” In disposing of a motion by the appellee to dismiss the writ of error, the court charged that the writ of error bond filed as aforesaid was “sufficient to retain the cause in Court.” In the instant case, there has at no time been an application on behalf of J. E. Hamby to file the record for writ' of error, which he might have done upon giving bond with security for the prosecution of the writ of error. The petitioners request additional findings with respect to a number of specific propositions set out in the petition, some of which are propositions of fact (which we regard as in the nature of evidential facts), and some of which are propositions of law. In our former opinion in this case, we pointed out the material issues made by the pleadings, and the findings of the chancellor upon these issues, which findings, in our opinion, covered and included each and every material issue on the record; and we then stated, in substance, that, after an examination of the evidence in the record, we concurred in the chancellor’s findings, except with respect to one matter which we held (for reasons stated in the opinion) was not material to the result. We made no detailed statement, or review, of the “voluminous evidence” in the record, and stated, as our reason for not thus extending our written opinion, that “the statute, section 10620 of the Code, requiring this court to make written findings of facts, contemplates that the court shall find only the ultimate, determinative facts upon which its conclusions of law are predicated, and not mere matters of evidence, nor all the separate and disjointed facts which it may consider in arriving at the result;” and we cited in support of the statement just quoted the case of Anderson County v. Hays, 99 Tenn., 542, 552 , 42 S. W., 266 , and five comparatively recent published opinions of this court. It is, in substance and effect, insisted in the petition for a rehearing, that it was error to thus omit a review of the evidence, and that, on this point, the case of Anderson County v. Hays, supra, is in conflict, with the later case of Hibbett v. Pruitt, 162 Tenn., 285 , 36 S. W. (2d), 897 ; but the petitioners either overlooked or ignored the aforesaid five cases decided by this court in which the same method of disposing of the issues of fact as in the instant case was followed, and in each of which cases the Supreme Court denied a petition for certiorari without criticism of the method which this court had followed in dealing with the facts of the ease. We do not understand the opinion in Hibbett v. Pruitt, supra, as having any bearing whatever upon the point here under consideration. *28 We endeavored in our former opinion to state the issues and our findings and conclusions in what we regarded as the most appropriate manner, and the petitioners have not satisfied us that there is any occasion for a rehearing or additional findings. An order will be entered dismissing the petition at the cost of the petitioners. Crownover and Felts, JJ., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3893592. Public record. Not legal advice.