# Real Estate Commission v. McLemore

> Tennessee Supreme Court · July 29, 1957 · 202 Tenn. 540

URL: https://www.frixlaw.com/law-library/cases/8303604

## Case

- **Full name:** Real Estate Commission, of State of Tennessee, in Error v. J. T. McLemore, in Error
- **Court:** Tennessee Supreme Court
- **Decided:** July 29, 1957
- **Citations:** 202 Tenn. 540; 6 McCanless 540; 306 S.W.2d 683; 1957 Tenn. LEXIS 437
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Swepston
- **Cited by:** 7 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/8303604

## Opinion text

On Petition to Rehear.
The petition to rehear contains two propositions. The first is that the Court has erroneously adopted as the criterion of its decision the most rigid strictures of common law and statutory certiorari, T.C.A. secs. 27-801, 27-802, overlooking the terms of T.C.A. sec. 62-1326 providing for certiorari as a matter of right as a substitute for an appeal and designating Chapter 9, Title 27, secs, -r/-901, 27-902 et seq.; it is insisted that the right to cern- *546 orari is not dependent upon the requirements of the common law or statutory certiorari, supra, but that the complaining party is entitled to it merely because he is dissatisfied with the result of the hearing before the Board or a Commission.
We think this is a re-argument of the matter that was covered in the original opinion and we refer thereto as our response now.
Counsel insists that his contention stated above is necessarily so because the Real Estate Commission is expressly declared to be a judicial body, that is, a Court and that it cannot be a Court without a right of appeal from its judgment, for this would transcend the prohibitions of both State and National Constitutions.
We do not think that is a correct statement of law. The right of appeal is not fixed by our Constitution further than to insure that the Supreme Court shall have the right of supervisory review over all inferior tribunals. Every man has a right to his day in Court, that is to have a hearing after due notice, but it by no means follows that he has a right to have the first hearing-reviewed by a higher Court. This question has been answered by the United States Supreme Court in several ways. In Ex parte Abdu, 247 U.S. 27 , 38 S.Ct. 447, 448 , 62 L.Ed. 966 , at page 968, said the Court:
“The error results from disregarding the broad distinction which exists between the right to be heard in courts of justice on the one hand and the necessity for the grant of authority on the other to review the results of such hearing by proceedings in error or appeal.”
*547 Again, in Reetz v. Michigan, 188 U.S. 505 , 23 S.Ct. 390, 392 , 47 L.Ed. 563 , it was said:
“Neither is the right of appeal essential to due process.”
This was reaffirmed in United States v. Heinze, 218 U.S. 547 , 31 S.Ct. 102 , 54 L.Ed. 1145 .
Again in Pittsburgh, G. C. & St. L. R. Co. v. Backus, 154 U.S. 421, 439 , 14 S.Ct. 1114, 1117 , 38 L.Ed. 1031 , it was said:
“If a single hearing is not due process, doubting it will not make it so.”
Then see Judge Green’s opinion in McKee v. Board of Elections, 173 Tenn. 269 , 117 S.W.2d 752 .
In sum, if no appeal is provided for, then a person is entitled, to avail himself of either the common law cer-tiorari or the statutory, whichever may suit his needs.
The second proposition is that petitioner was depending on his attorney, as he had a right to do, and he should not be held responsible for the shortcomings, failures or derelictions, if any, of said attorney when the party himself was not at fault.
If counsel will read pages 521 and 522 of the case of Mitchell v. Porter, 26 Tenn.App. 498 , 173 S.W.2d 443 , at pages 452 and 453, it will no doubt make it clear why we do not think that either the petitioner or his counsel was free of fault. See also, 5 Am.Jur., 305, sec. 78.
We are, therefore, constrained to overrule the petition to rehear.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8303604. Public record. Not legal advice.