# Opposition Brief — Kershaw v. Tennessee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1971
- **Citation:** 404 U.S. 1004

## Text

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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

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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

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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

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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

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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-

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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,”

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0088%3A2. Public record. Not legal advice.