Opposition Brief — Kershaw v. Tennessee

mae, eae

March 11, 1971, and return the record to the Tennessee

Supreme Court Clerk’s office by that date is attached

hereto as Appendix II. A certified copy of the order of

the Tennessee Supreme Court dated March 22, 1971, re-

flecting tLut no Assignments of Error and Brief were filed

within the time permitted by the established Rules of the

Tennessee Supreme Court and that the Petitioner had

failed to file said Assignments of Error and Brief within

the time set forth in the Tennessee Supreme Court’s order

of March 1, 1971, and therefore dismissing the Petitioner’s

petition for writs of certiorari and supersedeas, is attached

hereto as Appendix III. A certified copy of the Memoran-

dum on Petition to Rehear dated June 7, 1971, and order

of the Tennessee Supreme Court of the same date denying

the Petitioner’s petition to rehear because of the Peti-

tioner’s failure to follow that Court’s aforesaid rules and

orders are attached hereto as Appendices IV and V.

JURISDICTION

The jurisdictional requisites are adequately set forth in

the petition.

QUESTION PRESENTED

The Respondent is dissatisfied with the presentation of

the question involved by the Petitioner and, therefore, pur-

suant to Rule 40(3) of the Supreme Court Rules, presents

the question as follows:

(1) Whether or not the Petitioner, an experienced, li-

censed attorney, was denied any constitutionally protected

right by the action of the Tennessee Supreme Court in

dismissing his petition for writs cf certiorari and super-

sedeas and his petition to rehear thereon on the ground

that both the Petitioner, and his private counsel, also an

experienced, licensed attorney, had flagrantly, knowingly

= se

and continuously violated the established rules of proce-

dure before said Court and the orders of said Court in this

case without just cause.

STATEMENT OF THE CASE

On April 14, 1970, the Petitioner, an experienced, li-

censed attorney at the Tennessee Bar, appeared in open

court in Division Three of the Criminal Court of Davidson

County, Tennessee, as attorney for a Mr. Robert Vick, who

had been charged with certain criminal offenses. On this

date he advised the trial court judge that he had copies

of the presentments involved and entered a plea of not

guilty for the said Mr. Vick. On this same date another

defendant, Mr. Don Vestal, who was represented by an-

other local attorney, Mr. Joe P. Binkley, also entered a

plea of not guilty through said attorney. Also on the same

date in a pending joint case against Mr. Vick and Mr.

Vestal, both the aforesaid attorneys advised the trial court

jadge that they had copies of the presentment in that case;

that they both waived formal reading of the presentment

and both entered pleas of not guilty for their clients. On

this date the trial judge advised both attorneys and their

clients that the case would be set for the next term of the

trial court and that they would be notified.

On J ne 19, 1970, the Petitioner, along with two other

attorneys, was present in the trial court apparently re-

questing a trial of these cases on June 25, 1970. At this

time the Petitioner advised the trial court that he would

be representing Mr. Vick in these cases as attorney of

record, recognized that he was responsible for the case

up until he was relieved and stated that, with regard to

his representation of Mr. Vick, ‘‘I’ve got to clear that

up today’’. After some discussion between the trial judge

and one of the other attorneys in these cases regarding

the length of time necessary to try the cases and other

Pee ETE ENTERED RE Mt NOPE RR

Fg NORA ony:

D8 POIROT Ct

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matters, it was suggested that the cases be set for July

20, 1970. This suggestion was not feasible and the court

stated that he would set the cases specially for a day in

September which was designated as September 21, 1970.

It was requested by the defense counsel involved that

the State elect which of the three cases it intended to

prosecute on that date in advance and the court, after

requring selection of one of the three cases by the local

District Attorney General ten (10) days in advance of

the aforesaid trial date, stated to all the attorneys in at-

tendance, including the Petitioner, ‘‘Don’t let there be

any misunderstanding on that and on September 21st

we will try it and it’s got this Court pre-empt and it’s

got you lawyers’ time pre-empt.’’ Upon questioning by

the trial court judge, none of the attorneys advised the

trial court judge of any conflict on September 21, 1970.

On June 25, 1970, the trial judge announced in open

court that the Don Vestal-Robert Vick cases have been

passed and set for September 21, 1970 on a special

setting.

The Bill of Exceptions herein uext reveals that on

September 11, 1970, some question regarding the Robert

Vick case came before the trial judge at which time the

trial judge stated in open Conrt in the Petitioner’s pres-

ence ‘‘, . . Gentlemen, this case is set specially and has

been set specially now, since some 60 days ago or

more... .’’ The Petitioner then attempted to interrupt

the trial court judge and said judge replied, ‘‘Wait a

minute, let me get this on the record. This case will be

tried on the day it is set for trial. I’m not going to

tolerate any disagreement on it now.” The trial court

judge then asked the Defendant, Mr. Vick, represented by

the Petitioner, whether he had an attorney to represent

him and Mr. Vick replied, ‘‘Yes, sir”. The Petitioner

then stated to the court, ‘‘we had a conference yesterday

—_ oo

afternoon, Your Honor. We talked to Dan Garfinkle by

long distance last night and on the basis of that conversa-

tion we will represent him in these cases.’? The triai

judge then replied, ‘‘All right, now, gentlemen, the

record will clearly show that neither you, Mr. Kershaw,

(the Petitioner) as his lawyer, nor Mr. Vick, by any other

method will be able to raise that as a grounds for a con-

tinuance. This case is going to be tried and you are his

attorney and you are expected to be here.’? The Peti-

tioner then replied, ‘‘I will state to Your Honor, that I

will be here.’? The trial judge then reminded counsel

that he did not want any doubt about the matter to which

the Petitioner replied, ‘‘Well, I’m just telling you again.’’

The trial judge responded, ‘‘All right,’’ and the Peti-

tioner responded again, ‘‘All right, sir.”’

The matter came on for trial on September 21, 1970,

on the date specially set for the trial and, after the at-

torney for the State announced that the case which would

be tried on this date was the one wherein Mr. Vick and

Mr. Vestal were jointly indicted and it was determined

that a trial jury was available and the trial judge stated

that it was ready to take up the case. At that time the

Petitioner announced that he wished to be relieved of

representing Mr. Vick and that Mr. Vick had made ar-

rangements for other counsel. He stated to the trial

judge that he understood that Mr. Vick’s other counsel

was adequately prepared and, on that basis, ‘‘. .. I am

ready to state in that accord my motion to withdraw.”’

The trial judge then reminded Mr. Kershaw tkat the

matter of his being relieved of representation of Mr. Vick

had oceurred on two previous occasions; that on Friday

of the previous week he had made a motion to be relieved,

in open court, with Mr. Vick present and that at that

time Mr. Kershaw personally assured the Court that there

was no problem regarding said representation and that

he would be trial counsel for Mr. Vick. The Petitioner

spine a eid can SAS pr Mw ae

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admitted that the foregoing had transpired but stated

that ‘‘. . . there’s no difficulty now, he has representa-

tion.’’ The trial court then advised the Petitioner that

he was still the attorney of record and was expected to

be here present throughout the trial as attorney for the

defendant; that he was overruling the Petitioner’s motion

to be relieved but did not object to another attorney being

associate counsel. That he was going to permit wide

latitude regarding associate counsel by both defendants

in this case since both defendants had two lawyers, but

that it ‘‘. . . the case begins te unnecessarily drag out

through the problem of co-counsel, then I’m going to

restrict the proceeding back down to the lead counsel.

So, all cf you, the State and each defendant, bear in

mind.’’? The Petitioner then stated to the court that he

would like to ‘‘. . . say one more thing, if I may,’’ and

the court responded that he didn’t intend to allow a lot

of speeches in the case and that the Petitioner was still

in the case. The Petitioner again attempted to make a

statement to the Court about the matter of representation

and the Court then advised the Petitioner, ‘‘Mr. Kershaw,

don’t push me. Sit down over there and be ready to try

this lawsuit. You are not being relieved.’’ The Petitioner

then responded that he could not believe the defendant

on oath and did not want to represent him. The trial

court judge responded that the Petitioner should have

taken this matter up during his motion made about nine

(9) days before the trial date when he had ample op-

portunity to do so and that this matter would not be

discussed further. The Petitioner then stated to the

court that if he was attorney of record, he presumed he

should have an opportunity to try to get some coopera-

tion out of his client. The trial court judge then reminded

the Petitioner that at the time of his motion to be relieved

a week earlier he had advised the Court that he had

made a telephone call to Miami Beach, Florida and that

= ae

all matters of representation were in order. The Peti-

tioner then stated that he remembered the situation during

the previous week but that the same was different on

this the trial date. The trial court judge disagreed that

the situation had changed a great deal and advised the

Petitioner that he knew what he was doing during the

previous week. The Petitioner responded that he knew

that Mr. Vick would have representation on the trial date

and that Mr. Vick would have counsel present. The trial

court judge then stated that the Petitioner had advised

him differently during the previous week and that if

the Petitioner was willirg to be incarcerated for ten (10)

days for contempt he would let him out of the lawsuit

and proceed with other matters, but that ‘‘I’m not going

to take this, Mr. Kershaw.’’ The Petitioner, Mr. Kershaw,

then stated that he had tried to outline the matter in a

‘¢ in a common sense situation,” and the trial court

judge replied that he had an opportunity to do this a

week before and asked the Petitioner whether he was

ready to sit down and try the lawsuit on the merits. The

Petitioner then stated, ‘‘I can do nothing else.’’ and the

trial judge responded, ‘‘that’s right. All right, bring

some jurors.”’

At this time it was agreed that a witness who was in

attendance in the court room could return to his place of

employment upon call and, after the prosecutor, Mr. Earl

Wingo, was seated with the State’s attorney, the jury was

selected.

It appears from the record that the defendant Vick’s

co-counsel conducted examination of the prospective jurors.

After both sides agreed’ that the jury was acceptable and

just before the jury was brought in, the Petitioner ad-

dressed the court asking permission to make a motion at

that time in the absence of the jury. The trial court judge

replied that his motion would be out of order since the

otines

matters now before the Court dealt with the empaneling

of the jury. “he alternate juror was then selected. The

trial court judge then announced to the jury that because

of the hovr of the day the case would be adjourned until

the next morning at 9:30 a.m. and that they would be in

the custody of the court officers ugjjl that time. The jury

then withdrew aud the court asked the Petitioner what

was the nature of his motion. The Petitioner then stated

that he had discussed the matter further with Mr. Vick

and his other counsel and that he was unemployed and did

not wish to be employed in the matter and the judge re-

plied that he had already ruled that the Petitioner was

in the case and would not entertain any conversation in

that regard. The Petitioner then stated that he had a

piece of new information that he believed would justify

a motion and the court replied that based upon the past

record in this case and the fact that the Petitioner was

an officer of the court he would not discuss the matter

further. The Petitioner’s exception was then noted and

court was adjourned until the next morning or September

22, 1970.

On the next morning after all parties and counsel an-

nounced present and the jury roll was called, the trial

court judge announced that he was ready to proceed and

directed the State’s counsel to read the presentment. At

this time the Petitioner stated in open court that he had a

preliminary matter he wanted to take up in the absence of

the jury. The trial court judge then stated that the pre-

sentment would be read and, after the presentment was

read and the defendants entered pleas of not guilty, the

jury withdrew to the jury.room upon the direction of the

trial court judge. The trial court judge then asked the

Petitioner the nature of the matter he desired to take up

and the Petitioner responded by stating that he had a

motion he desired to read into the record and began read-

ing said motion which dealt with the subject of withdraw-

an

ing as counsel for the defendant Mr. Vick. The trial court

judge advised the Petitioner that said motion was out of

order and the Petitioner responded, ‘‘Then I will address

the record, whick is my privilege.’’ The trial court judge

then stated, ‘‘No, sir, you will be in contempt of court if

you raise the question one more time, Mr. Kershaw.’’ The

Petitioner then stated, ‘‘I will file this right now as part

of the record. Let the record show I’m filing this. Mr.

Clerk, wiil you come and accept this.’’ All the foregoing,

of course, occurred in open Court before the trial court

judge.

The trial court judge then directed that the Petitioner

be taken into custody and delivered to the jail for ten (10)

days for contempt of court and stated, ‘‘Gentlemen, I de-

clare a mistrial in this case. It is obvious that that has

been the intention down the line.’’ The Petitioner re-

sponded, ‘‘Let the record show that that is not the intent.’’

The trial court judge then stated, ‘‘Mr. Kershaw may be

delivered to the jail for 10 days.’’ and tne Petitioner

responded, ‘‘I’m not in contempt.’’ Counsel for Mr.

Vick’s co-defendant then stated, ‘‘May I address the

Court and say to Your Honor that I’m sorry that this

situation occurred.’’ The trial court judge then reiterated

the history of the special setting of this case; stated that

he could not condemn any counsel for anybody’s action in

this regard and stated that, although he was sorry, he

did not know of any way the Court could conduct its busi-

ness. Mr. Vick’s co-counsel, Mr. Wehby, then stated to

the Court, ‘‘Your Honor, I’m certainly sorry and I am ©

prepared to go forward. Whatever Your Honor rules.’’

And counsel for the co-defendant, Mr. Binkley, stated,

‘‘We understand the Court’s position.’’ The trial court

judge then stated that he knew no way to avoid declaring

a mistrial in this case and the State’s counsel thereafter

stated, ‘‘I would like to state that there is absolutely no

State action involved in this case. If the defendant’s at-

torney can come into a Court and disrupt the proceedings

like this, there is no way a defendant ever could he

brought to justice.’? The aforesaid Mr. Joe P. Binkley,

as attorney for the Defendant, Vestal, said, ‘‘I think Your

Honor knows that I have a deep and abiding respect to

this Court and with all deference to this Court, it bothers

me to some extent that an attorney would put himself in

that position in this matter and shed some . . . it just

can’t help but filter into the other defendant, and Mr.

Vestal certainly had nothing to do with it and was not

involved in it ard Your Honor is exactly right. Your

Honor told us some time ago to be ready and we have

been ready. We haven’t asked you for any continuances.”’

Thereafter a mistrial was declared and the jury excused.

This also was all in open court.

On the date of the Petitioner’s commitment for con-

tempt, as aforesaid, or September 22, 1970, the Petitioner

petitioned the Tennessee Supreme Court and was granted,

ex parte, writs of certiorari and supersedeas to review

and stay the aforesaid commitment. No assignments of

error and brief and transcript of the record accompanied

said petition as required by Rule 10 of the Tennessee

Supreme Court rules (App. IV.). The case came on for

oral argument before the Tennessee Supreme Court on

December 8, 1970, at which time it was continued to the

March, 1971 session of said Court on motion of the Peti-

tioner (App. I). The transcript of the record was not

filed in said Court until December 7, 1970, or two and one-

half (24%) months after the said petition was filed and

granted. On February 12, 1971, or four and one-half

(4144) months after the filing of the petition and more than

2 (2) months after the transcript had been filed, the Re-

spondent filed a motion to dismiss the petition on the

ground that no assignments of error and brief had been

filed within the time required by the rules of the Tennessee

a ;

Supreme Court nor any extension of time prayed for or

granted. The Petitioner made no response to this motion.

On March 1, 1971, the case came on for argument and

neither Petitioner nor his counsel were present and no

assignments of error and brief had been filed and no

application had been made to the Court for an extension

of time or for a continuance. Counsel for the Respondent

then advised the Court that on the previous evening

Petitioner’s counsel had, by telephone, requested another

continuance and requested that Respondent’s counsel ad-

vise the Court of an illness in Petitioner’s counsel’s

family. Although another continuance was not granted,

the Court, by written order, granted the Petitioner an-

other ten (10) days to file his assignments of error and

brief, On March 11, 1971, the last day for filing assign-

ments of error and brief under the aforesaid order, such

had not been done either by the Petitioner or his private

counsel and no application for an extension of time had

been made. Consequently, on March 22, 1971, with still

no assignments of error or brief being filed, the Ten-

nessee Supreme Court entered an order granting the Re-

spondent’s motion to dismiss (App. II, Ill, IV). On

April 1, 1971, the Petitioner filed the assignment of errors

and brief in this case, accompanied by a petition to the

Tennessee Supreme Court to rehear, reconsider and vacate

its order of dismissal. This last petition was denied by

the Tennessee Supreme Court in an order entered on

June 7, 1971, with attached Memorandum on Petition to

Rehear (App. IV and V).

—12—

BRIEF AND ARGUMENT

The Respondent submits that the Petitioner has been

denied no rights protected by the United States Con-

stitution in the aforesaid action of the Tennessee Supreme

Court particularly since the Petitioner is a licensed, ex-

perienced attorney and his private counsel is also a li-

censed, experienced attorney, both of whom not only know

the applicable rules of practice before the Tennessee Su-

preme Court but were aware of the orders of said court

herein involved and yet continuously and flagrantly failed

to comply therewith.

Further, the Petitioner’s contention that his summary

punishment for contempt herein violated his rights under

the due process law of the 14th Amendment to the United

States Constitution is without merit, The entire matter

which is herein involved occurred in the presence of the

trial court judge in open court and it is well settled that

a trial judge has the power to punish instantly the con-

tempt of its lawful orders and commands where said

violations occur in the presence of the court and such

action is necessary in order to preserve the dignity and

authority of the court and to preserve order in the trial.

See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.

2d 353 (1970); Harris v. U. 8&., 382 U.S. 162, 86 S.Ct.

352, 15 L.Ed.2d 240 (1965), and Johnson v. Mississippi,

... UL S. ..., 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971). In

the casé sub judice the Respondent respectfully submits

that the trial judge was entirely justified in his action

as reflected in the contemporaneous comments of other

trial] counsel present,

o- 13 —

CONCLUSION

As the petition presents no question which merits this

Honorable Court’s review upon a writ of certiorari, the

Respondent respectfully submits that this petition for a

writ of certiorari should be denied.

Respectfully submitted

C. HAYES COONEY

Assistant Attorney General

St-te of Tennessee

Supreme Court Building

Nashville, Tennessee 37219

- |

SS e

APPENDIX I f

MEGA

Supreme Court, Nashville

MB 48/374

Jack Kershaw, Petitioner,

vs. Davidson, Criminal.

State of Tennessee, Respondent. Continuance.

Upon motion of petitioner and for good cause shown,

the hearing in this matter is continued until the March,

1971 Session of the Court at Nashville; and it is so

Ordered. 12/8/70.

NeW

Office of Clerk of the Supreme Court

For the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby E

certify that the foregoing is a true, perfect, and complete ;

copy of the Order of Continuance of said Court, pro- :

nounced at its December term, 1970, in case of Jack Ker-

shaw, Petitioner, against State of Tennessee, as appears |

of record now on file in my office. (Minute Book 48, Page

374)

In Testimony Whereof, I have hereunto set my hand :

and affixed the seal of the Court at office in the Supreme t

Court Building at Nashville, on this, the 5th day of No-

vember, 1971.

(Seal) “RAMSEY LEATHERS, Clerk

Ml Aivavecades , Deputy Clerk

— sw

APPENDIX II

Supreme Court, Nashville

MB 48/403

Jack Kershaw, Petitioner,

vs. Davidson, Criminal.

State of Tennessee, Respondent.

Order

This cause came on to be heard at the regular call of

the docket; and,

It appearing to the Court that a motion has been filed

by Respondent to dismiss the petition because of failure

of counsel for Petitioner to file a brief pursuant to the

Rules of this Court, and that counsel for Petitioner has

failed to return the record to the office of the clerk; and,

It further appearing to the Court from statement of

counsel for Respondent that counsel for Petitioner was

unable to appear because of illness in his family and re-

quested that the cause be continued until the next session |

of the Court, which request for continuance is not agreed

to by Respondent.

From all of which, the Court is cf opinion that the

cause should not be continued but be submitted to the

Court upon the entire record, including any motions and

briefs in support thereof heretofore filed, and briefs to

be submitted.

It is, therefore, Ordered that counsel for Petitioner is

granted to and including March 11, 1971, within which

to file a brief in support of the petition; and,

a ae

It is further Ordered that the record in this cause be

returned by counsel for Petitioner to the office of the

Clerk no later than 4:30 P.M. on March 11, 1971.

Enter, this the 1st day of March, 1971.

(Illegible)

Chief Justice

Office of Clerk of the Supreme Court

For the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby

certify that the foregoing is a true, perfect, and complete

copy of the Order filed March 1, 1971 of said Court, pro-

nounced at its December term, 1970, in case of Jack Ker-

shaw, Petitioner, against State of Tennessee, as appears

of record now on file in my office. (Minute Book 48, Page

403)

In Testimony Whereof, I have hereunto set my hand

and affixed the seal of the Court at office in the Supreme

Court Building at Nashville, on this, the 5th day of No-

vember, 1971.

(Seal) RAMSEY LEATHERS, Clerk

Gris aon , Deputy Clerk

_— oom

APPENDIX III

Supreme Court, Nashville

Jack Kershaw,

Petitioner,

bag Davidson County

State of Tennessee,

Respondent. |

Order

This cause came on to be heard upon the petition of

Jack Kershaw, Petitioner, for the writs of certiorari and

supersedeas and the motion of the Respondent, State of

Tennessee, to dismiss the petition and to set aside the su-

persedeas heretofore granted staying further proceedings

on the judgment and order under which Petitioner was

confined pending disposition of the matter, upon the

grounds thai no assignments of error and brief in support

of the petition were filed within the time required by

Rules 10, 14 and 15 of this Court; and,

It appearing to the Court that the petition for the writs

of certiorari and supersedeas was filed herein on Septem-

ber 22, 1970, and that the writs of certiorari and superse-

deas were issued the same date; and,

It further appearing to the Court that the transcript of

the record was filed with the Clerk on December 7, 1970,

and the matter set for hearing at the regular call of the

docket on March 1, 1971, at which time counsel for Peti-

tioner was granted to and including March 11, 1971, within

which to file assignments of error and brief; and,

It further appearing to the Court that no assignments

of error and brief in support of the petition have been filed

and that the motion of the Respondent to dismiss the pe-

tition and set aside the supersedeas is proper and should

be sustained.

— A-5—

It is, therefore, Ordered that the motion of the Respond-

ent to dismiss the petition for the writs of certiorari and

supersedeas be and is hereby sustained, and the petition

is dismissed.

It is further Ordered that the supersedeas heretofore

granted on September 22, 1970, is hereby set aside and for

nothing held. |

The Clerk is directed to forward certified copies of this

Order to the Honorable Allen R, Cornelius, Jr., Judge, Di-

vision III of the Criminal Court of Davidson County, coun-

se] for Petitioner and counsel for Respondent, the Peti-

tioner, Jack Kershaw, the Clerk of the Criminal Court of

Davidson County and the Sheriff of Davidson Count

The Petitioner, Jack Kershaw, will pay all costs inci-

dent to this proceeding, for which let execution issue.

3/22/71.

Per Curiam

Office of Clerk of the Supreme Court

For the Middle D‘vision of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby cer-

tify that the foregoing is a true, perfect, and complete

copy of the Order Filed March 22, 1971 of said Court, pro-

nounced at its December term, 1970, in case of Jack Ker-

shaw, Petitioner against State of Tennessee as appears of

record now on file in my office (Minute Book 48, Page

412),

In Testimony Whereof, I have hereunto Set my hand

and affixed the seal of the Court at office in the Supreme

Court Building at Nashville, on this, the 5th day of No-

vember, 1971.

RAMSEY LEATHERS

Clerk

(Seal) i Deputy Clerk

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APPENDIX IV

Jack Kershaw, a

Petitioner,

vs. Davidson County

State of Tennessee,

Respondent. J

Memorandum on Petition to Rehear

(Filed June 7, 1971)

This cause is before the Court upon a ‘‘Petition to

Rehear,’’ following the Court’s order of March 22, 1971,

dismissing the previously granted petition for the writs

of certiorari and supersedeas, because of petitioner’s fail-

ure to file an assignment of errors and brief as required

by the Rules of this Court.

The petition in this cause, for the writs of certiorari

and supersedeas, was filed on September 22, 1970, seeking

relief from the order of a Cireuit Judge of Davidson

County committing the petitioner, an attorney, to the

County Workhouse, for contempt of court. This petition

was not accompanied by an assignment of errors, brief,

and transcript of the record as required by Rule 10 of

our Court,! but because of concern with the circumstances

1 “Rule 10. Petitions presented to a judge, or to the court in

term time, for writs of error, or writs of error and supersedeas,

or writs of certicrari and supersedeas, to review, reverse and su-

persede judgments and decrees of trial courts, shall state the

case briefly, and be accompanied by an assignment of errors,

and a brief, as herein required of cases brought to this court

by appeal, and a transcript of the record; and if filed for su-

persedeas, or after one year, also by a copy of notice served on

oppcesite party or counsel, affording him an opportunity to file

a reply brief, or such reasons for the failure to do so as the

-eourt or judge may deem sufficient to excuse the party from giv-

ing notice (Tipton v. Tipton, 118 Tenn. 691).”

o

cy

—A-7— ¥

of the case, the petition was nonetheless granted, and

the case set for argument before the Court on December

8, 1970.

The transcript of the record was not filed in this Court

until December 7, 1970, some two and a half months after

the petition for certiorari was filed and granted. Subse-

quently, on application of petitioner, on December 8,

1970, the case was ordered continued until the March

1971 session of the Court.

On February 12, 1971, some four and a half months

after the filing oi the petition, and more than two months

after the transcript had been filed, the respondent filed

a motion to dismiss the petition on the ground that no

assignment of error and brief had been filed within the

time required by Rules 10, 14 and 15,? nor had any ex-

2 “Rule 14: Counsel for appellant or plaintiff in error in all

civil cases shall file with the clerk of this court not more than

twenty-five (25) days after the date of the filing of the tran-

script of the record, assignment of errors and brief in support

of same, typewritten or printed in accordance with Rule 3.”

“Rule 15: Briefs in support of assignments of error.—The as-

signments of error must be accompanied by a brief, which shall

State concisely and specifically the propositions of law and fact,

without argumeni or elaboration, relied upon by the appellant,

or plaintiff in error, to sustain the several errors assigned for

reversal of the trial court. There must follow each proposition

of law a citation of the authorities relied upon to sustain it,

and there shall follow each proposition of fact citations to the

record which are relied upon to sustain the contention of the

appellant, or plaintiff in error.

(1) This brief must be filed in all cases.—It may be combined

with the assignments of error, or filed in a Separate form. An

argument will not supply the place of a brief.

(2) Case affirmed when assignments of error not filed—When

appellants, or plaintiffs in ‘error, in civil cases, fail or refuse

to file an assignment of errors and brief, as required by this

rule, it will be taken as an abandonment of the appeal or writ

of error, and the decree or judgment will be affirmed. Errors

not assigned and supported by brief according to this rule, will

be treated as waived, but the court, in its discretion, may notice

an. error overlooked by counsel,”

eR EET 2 ey raul.

FRE ee

Cation. Rite Bis rade Ee

eee RON Air a ieke att.

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ae

tension of time been prayed for or granted. No response

was made to the motion by the petitioner.

When the case was called for argument, on March 1,

1971, neither petitioner nor his counsel was present. No

assignment of errors and brief had been filed, and no

application had been made to the court for an extension

of time, or for a continuance. Counsei for the respondent

stated to the Court that petitioner’s counsel had contacted

him by telephone, and asked that he inform the Court

that illness in his (counsel for petitioner) family pre-

vented his appearance, and that he (counsel for peti-

tioner) requested a continuance until the next term of

Court. Counsel for respondent, in view of the long period

of time during which petitioner had failed to file an

assignment of errors and brief, opposed the request for

a continuance and relied on his motion to dismiss.

Although no continuance was granted, the Court on its

own motion ordered that the petitioner be given ten days

in which to file his assignment of errors and brief.

Upon the expiration of the ten day period, on March

11, 1971, no assignment of errors and brief hed been filed,

nor had any application for extension of time been made

to the Court. Consequently, on March 22, 1971, an order

was entered granting the respondent’s motion to dismiss

the petition.

On April 1, 1971, the petitioner filed the assignment

of errors and brief in this cause, accompanied by a peti-

tion to the Court to reconsider and vacate its order of

dismissal. Counsel for the petitioner, in the ‘‘Petition to

Rehear,’’ stated only that: ‘‘his failure to file the neces-

sary pleadings within the time graciously extended and

allowed by this Court was not due or owing to any lack

of respect for the Court, but rather to inadvertence and

the sudden illness and subsequent death of his father,

—

and for no other reason, and certainly not for the purpose

of delay.’’

By the most lenient construction of our Rules, as ap-

plied to this case, the petitioner was required to file his

brief and assignment of errors within twenty-five days

of the date of filing of the transcript (Footnote 2, Rules

14 and 15, supra). Perhaps it is arguable that Rule 17,

concerning Criminal Appeals, has some application to the

case, but to decide that is unnecessary, since Rule 17

allows only thirty days from filing of the transcript within

which to file assignment of errors and brief. No such

filing was made here until almost four months after the

transcript was filed, and six months after filing of the

petition. The Court is strongly of the opinion that the

single reason given by petitioner’s counsel for his failure

to file an assignment of errors and brief in no way ex-

cuses his failure to take any action in this case over the

months prior to the calling of the case in March of 1971,

nor is it sufficient to justify his ignoring the extension

of time granted. The Court is of the opinion that it has

already made substantial concessions to the petitioner,

in its desire to hear his case on its merits, and holds that

it will not so completely abandon its rules as to withdraw

our order of dismissal.

We note that what we have said above applies with

greater force because the petitioner himself is an attor-

ney, and certainly was aware of his counsel’s action (or

lack of it) in this case, and of the Rules of our Court.

It follows from the above that the petition to rehear

will be denied,

/s/ HUMPHREYS, J.

for the Court

—A-10—

Office of Clerk of the Supreme Court

for the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby

certify that the foregoing is a true, perfect, and complete

copy of the Memorandum on Petition to Rehear of said

Court, pronounced at its December term, 1970, in case of

Jack Kershaw, Petitioner, against State of Tennessee, as

appears of record now on file in my office.

In Testimony Whereof, I have hereunto set my hand

and affixed the seal of the Court at office in the Supreme

Court Building at Nashville, on this, the 5th day of No-

vember, 1971.

/s/ Ramsey Leathers, Clerk

Sy seavsede , Deputy Clerk

(Seal)

SS eens

—

—A-11—

APPENDIX V

Jack Kershaw, .

Petitioner,

™ ] Davidson County.

State of Tennessee,

Respondent. J

Order

(Filed June 7, 1971)

This cause came on to be heard upon the petition to

re-hear, the assignment of errors and brief, and the reply

thereto, and upon the entire record in this cause; and,

It appearing to the Court that the petition for the

writs of certiorari and supersedeas were filed in this cause

on September 22, 1570, and that the writs of certiorari

and supersedeas were issued the same day; and,

It further appearing to the Court that the transcript

of the record was filed with the Clerk on December Te

1970, and that on motion of the petitioner on December

8, 1970, hearing of the matter was continued until March

1, 1971, at which time counsel for the petitioner was

granted to and including March 11, 1971, within which

to file assignments of error and brief; and,

It further appearing to the Court that upon failure of

counsel for the petitioner to file assignments of error and

brief by March 11, 1971, the motion of the respondent to

dismiss the petition. and set aside the supersedeas was

granted, and an order to such effect entered on March 22,

1971; and,

It further appearing to the Court that the petition to

rehear sets forth no reason sufficient to excuse the failure

Bw Ble a ee + >

— A-12—

of counsel for the petitioner to have filed assignments of

error and brief within the time allowed by the Court, the

Court is of the opinion the petition to rehzar should not

be granted.

It is, therefore, ordered that the petition to rehear be

and hereby is dismissed at the cost of the petitioner.

It is further ordered that the order of this Court of

March 22, 1971, dismissing the petition for certiorari and

setting aside the supersedeas heretofore granted be and

hereby is stayed for a period of ninety days, from the

date of entry of this order, pending the filing disposition

of a petition for the writ of certiorari to be presented to

the Supreme Court of the United States.

HUMPHREYS, J.

For the Court

Office of Clerk of the Supreme Court

For the Middle Division of the State of Tennessee

I, Ramsey Leathers, Clerk of said Court, do hereby

certify that the foregoing is a true, perfect, and complete

copy of the Order on Petition to Rehear of said Court,

pronounced at its December term, 1970, in case of Jack

Kershaw, Petitioner, against State of Tennessee, as ap-

pears of record now on file in my office. (Minute Book

48, Page 442)

In Testimony Whereof, I have hereunto set my hand

and affixed the seal of the Court at office in the Supreme

Court Building at Nashville, on this, the 5th day of No-

vember, 1971.

(Seal) RAMSEY LEATHERS, Clerk

Bl vaéewaess , Deputy Clerk

RUST W. DYER