Opinion

Davidson v. State

  • 223 Tenn. 193
  • 443 S.W.2d 457
  • 1969 Tenn. LEXIS 484
Court
Tennessee Supreme Court
Filed
May 5, 1969
Status
Published
On the bench
Burnett
Cited by
14 cases
Authority
More cited than 7.8%

The opinion

On Petition To Rehear

The plaintiff in error has filed herein a courteous, forceful and dignified petition to rehear. The opinion of this Court was handed down on May 5,1969. The burden of this petition is that this Court reversed the decision of the Court of Criminal Appeals and in so doing has not allowed the Court of Criminal Appeals to pass on the assignments of error therein made, because we re *208 versed that court on the State’s petition for certiorari which raised only the question of the sufficiency of the indictment wherein the Court of Criminal Appeals had reversed because it thought the indictment was not good. It is therefore argued that we should remand this case to the Court of Criminal Appeals for the purpose of allowing that court to pass on the merits of the original assignments therein.

We on the threshold are faced with the holding' of this Court in Independent Life Ins. Co. v. Hunter, 166 Tenn. 498, 506 , 63 S.W.2d 668, 671 , that: “no error of the Court of Appeals, either of commission or omission, cau be reviewed by this court except upon petition for certi-orari.” A number of applications of this rule may be found by Shepardizing this case. When this rule was stated the Court did not take into consideration a state of facts as herein presented. Over the years different circumstances have arisen.

We are of the opinion that when certiorari is granted one party, and the other party has not assigned error but has unanswered errors assigned in the Court of Appeals that this Court may answer those unanswered errors in the Court of Appeals and thus dispose of the entire case.

When certiorari is granted to one party and the other party does not assign cross-errors (we have Rules 12 [second paragraph], 13, and 15 [2] allowing them to do so) the party not assigning waives the right to do so.

It is fundamentally, legally and historically true that the granting of certiorari removes the whole case to the reviewing court so that we may consider any *209 errors which have been committed in the trial of the case. This power of our Court is exemplified in those cases which hold that we can consider any error committed, even without assignment of error, when the justice of the case requires it. Our Rule 15 [2]; Court of Appeals Rule 13 [last paragraph]; Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 658 , 315 S.W.2d 245, 249 , and others; sec. 27-823, T.C.A.

Having considered this case on its merits as well as on the question presented on the State’s petition for certiorari, we for reasons herein stated must overrule the petition to rehear. The costs will be assessed against Davidson and his sureties.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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