author: HENRY, Justice.

text:
    STATE of Tennessee ex rel. Perry A. CHAPDELAINE, Appellee, v. A. P. TORRENCE, President of Tennessee State University, et al., Appellants.
    Supreme Court of Tennessee.
    Nov. 17, 1975.
    On Petition to Rehear Jan. 19, 1976.

      R. A. Ashley, Jr., Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, for appellants.
    James D. Peterson, Peterson & Buerger, Franklin, Tenn., for appellee.
   OPINION

HENRY, Justice.

This civil action arises under the college and university teachers tenure law (§ 49-1421, et seq. T.C.A.), and presents principally the dual questions of a university professor’s entitlement to tenure status and the remedies available for his wrongful dismissal. The Chancellor held that plaintiff was a tenurial teacher and awarded back pay, but declined to order reinstatement. All necessary and proper parties are before the Court.

I.

As a threshold question we consider the defendants’ insistence that a previous suit instituted in the United States District Court in the Middle District of Tennessee in the cause of Perry A. Chapdelaine v. Dr. Sadie Gasaway, et a1., is res judicata and operates to bar the present suit.

Chapdelaine filed his pro se complaint in District Court on 27 July 1971, against some of the parties involved in the instant suit. It is couched in lay language, sprinkled with a smattering of legalistic phraseology and represents a crude effort to simulate an action under Title 42 U.S.C. § 1983. The District Judge dismissed for failure to state a claim upon which relief can be granted. It contained no prayer for relief and did not, in any sense, raise the question presented by the present controversy.

The defense of res judicata is patently without merit.

II.

Chapdelaine applied to Tennessee State University for a position as Assistant Professor of Mathematics. On 27 May 1966, he was notified by letter signed by the Dean of Faculty at Tennessee State that he was being recommended to the State Board of Education for employment effective 15 September 1966. The Dean advised:

The University offers the faculty certain fringe benefits such as: Teacher retirement, tenure after three years of satisfactory service, group life and hospital service, free admission to all university-sponsored cultural and athletic programs and social security benefits. (Emphasis supplied)

Chapdelaine relied upon this offer of employment and these representations, accepted the tendered position and received a letter from the Dean finalizing his employment.

He was re-employed for the next two school years and completed his three year probationary period in June 1969, and was employed for the school year 1969-1970. The fact that his salary was increased each year attests to the satisfactory nature of his service. His reemployment for a fourth year, at an increased salary, affords affirmative and conclusive evidence that he had acquired tenurial status. This conclusion necessarily follows from the applicable statutory law, as supplemented by the regulations promulgated pursuant thereto.

III.

Section 49-1421 T.C.A. reads as follows:

College and university teachers under state board of education — Rules and regulations — Law applicable — Existing tenure teachers. — The state board of education is hereby authorized and required to establish a system of tenure for college and university teachers under its jurisdiction. On or before September 1,1961 the board shall promulgate and publish reasonable rules and regulations for the establishment of a tenure system for such teachers and the board shall have the power to promulgate and publish such rules and regulations as are deemed reasonably necessary for the establishment of such tenure system which shall include but not be limited to standards and requirements concerning, (a) the minimum qualifications of teachers eligible for tenure; (b) the types of tenure; (c) leaves of absence; (d) time of termination of tenure; (e) transfers within the system; (f) credit for time served in other school systems within the state; (g) grounds and procedures concerning suspensions and dismissals; (h) investigations; (i) suspensions pending investigations and (j) such other subjects as are deemed by the board to be reasonably related to teacher’s tenure. The rules and regulations shall be adopted by a formal resolution by a majority of the membership, and the same shall be signed by a majority of the members of the state board of education as certified by the chairman and attested by the executive secretary of the board, and otherwise they shall be approved and filed in the manner required by § 4-501, et seq., of this Code. After giving written notice of charges against any teacher, the board shall hold a hearing in the same manner and shall have the same powers as provided in § 49-1416, provided that where such section refers to the superintendent for the purpose of this chapter, reference shall be made to the chairman of the state board of education. In addition, a teacher shall be entitled to a judicial review of the action of the board for the same purposes and in the same manner provided by § 49-1417.
Provided that every college or university teacher, who, prior to March 16,1961, has been recognized under policies, rules or regulations of the state board of education as having attained tenured status, shall, on and after March 16, 1961, be granted like tenure status by said board, provided that such college or university teacher has been employed by said board and has served for at least three (3) school years out of the last five (5) school years next preceding the school term which commenced in September, 1960, and has been reemployed by said board for the school year 1960-61, it being the legislative intent, and it is hereby so declared that such college or university teacher shall have, on and after March 16, 1961, like tenure status as such teacher had been granted under policies, rules or regulations of said board prior to such date; provided further that after such teacher has attained the tenure status authorized by the provisions of this paragraph, such teacher, thereafter, shall be subject to the provisions of the first paragraph of this section as well as to the provisions of all other sections of §§ 49-1421, 49-1422.

The second paragraph of the above quoted statute evidences a legislative intent that college and university teachers who had already acquired tenure status would continue that status if (1) they had served three out of the last five years and (2) had been reemployed for the ensuing year. This comes close to being a legislative determination that the probationary period should be three years; however, the legislature required the state board of education to establish a system of tenure for college and university teachers.

Responsive to this mandate the State Board of Education, on 11 August 1961, adopted an appropriate regulation, which contains the following provision:

Teachers shall be employed for the academic year annually during a probationary period of three years after which time if their services have been satisfactory, they may become members of the permanent teaching staff. The probationary period may be extended or shortened upon recommendation of the president of the college subject to the approval of the State Board of Education. (Emphasis supplied)

This regulation was approved by the Attorney General and filed with the Secretary of State, pursuant to the positive provisions of § 4-501 T.C.A., and remained in effect at all times relevant to this controversy.

The record reflects an evident misunderstanding on the part of the President of Tennessee State University (apparently shared by the State Board of Education) of the length of the probationary period. The affidavit of the President appears in the technical record. Under oath, Dr. Torrence stated:

At all times during Mr. Chapdelaine’s employment, the achievement of tenure at Tennessee State University was not marked by an affirmative action on the part of either the University, the Board, or the employee; tenure was and is automatically acquired by those who meet the requirements of the law and the relevant regulations of the Board. At all times during Chapdelaine’s employment, tenure could only be acquired by a full-time employee who served for five consecutive school years and who was rehired at the end of this probationary period. (Emphasis supplied)

We are in total agreement with Dr. Tor-rence that tenure was automatic upon the completion of a probationary period coupled with reemployment. But the probationary period was three years as opposed to five, a fact that apparently was not known to Dr. Torrence even after the institution of this lawsuit.

Under the statutory law as implemented by the 1961 regulation, college teachers acquired tenure automatically at the conclusion of the probationary period if their service was satisfactory, or, phrasing it another way, if they were rehired for the ensuing year.

College presidents and the state board of education had three choices in respect to tenure, viz:

a. they could re-hire a satisfactory teacher and thus confer tenure as they did in this case.
b. they could extend the period of probation, with appropriate notice to the teacher, and rehire for a further period of probation.
c. they could shorten the probationary period and confer tenure.

Dr. Torrence, in testimony subsequent to his affidavit, and presumably after he learned that the three-year rule was still in effect, altered his position. He insisted that tenure status could only be attained pursuant to a recommendation by the President and approval of the State Board of Education. It is evident that this has been the belief, the practice and the policy of the State Board of Education, and this is the basic insistence of the parties defendant on this appeal.

But this does not accord with the regulations filed pursuant to the tenure statute (49-1421) in 1961. This erroneous construction of the law by the State Board of Education cannot operate to confer any legal right or to deprive a college teacher of a status to which he is entitled under the law. The rule that administrative construction of statutes by officers charged with the duty of their enforcement, over a long period of time, is entitled to great consideration by the courts is not applicable to erroneous constructions of unambiguous statutes. Sanford Realty Company v. City of Knoxville, 172 Tenn. 125, 110 S.W.2d 325 (1937). Moreover, courts are not bound by the construction placed upon statutes by officers charged with their enforcement. Pryor v. Marion County, 140 Tenn. 399, 204 S.W. 1152 (1917).

Defendants insist before this Court that we should note the “evolving common law of tenure in Tennessee” and cite us to the practice and procedure whereunder tenure is granted only upon the recommendation of the College President and upon the approval of the State Board of Education (now State Board of Regents). This practice which was pursued without sanction of the law, and more particularly in derogation of the policy publicly proclaimed in the 1961 regulation, which has the full force and effect of law, cannot form a valid basis for the establishment of a “common law” of tenure. The" State Board of Education is simply hoist on its own petard.

In this particular case there is an additional consideration in Chapdelaine’s favor. He accepted appointment in reliance upon the affirmative representation that among the fringe benefits offered by the University was tenure after three years of satisfactory service. This created a viable understanding that satisfactory service for three years would result in tenure status. A college can create a contractual relationship, independent of tenure laws, which would result in tenure. Courts may apply the conventional standards of transactions in the market place to any agreement reached by the unqualified acceptance of an unqualified offer.

We hold that under the college teacher’s tenure act and by virtue of special contract, Chapdelaine acquired tenurial status upon the completion of three years of satisfactory probational service. Thereafter, he was entitled to all the rights and privileges inhering in this status.

IY.

Among the rights specifically given to tenure teachers under § 49-1421 T.C.A. is the right to receive written notice of charges. Chapdelaine was terminated without such notice. We now review the events leading up to his termination.

On 24 June 1969, he addressed a letter to the head of the Department of Physics and Mathematics, enclosing a copy of the letter of 27 May 1966 from the Dean offering employment and advising of his entitlement to tenure after three years, and making inquiry as to the necessity to “fill out some kind of form requesting that tenure be granted”. He was advised that “there is no item on the form which the teaching staff is expected to execute”, and that “recommendations for tenure status are made at a designated time of year”.

On 23 August 1969, the Dean of the School of Arts and Sciences addressed a further reply to Chapdelaine advising:

Recently the Board of Education ruled that a teacher could receive tenure after five years of satisfactory service. (Emphasis supplied)

This was Chapdelaine’s first notice that the tenure representation made by Dean Jackson would be breached.

It should be noted that Chapdelaine had been assigned to direct a Computer Assisted Instruction Program conducted at Tennessee State University and sponsored and funded by the National Science Foundation. For reasons and under circumstances not here appropriate for discussion, the Foundation withdrew its funding effective 30 September 1970. On 18 August 1970, Dr. Tor-rence advised Chapdelaine that his service would terminate on 30 September 1970. Significantly, Dr. Torrence closed his letter by advising that “we appreciate very much the services you have rendered the University”. Also of significance is the fact that much of this letter is devoted to the matter of obtaining other employment for Chapde-laine.

On 8 September 1970 Chapdelaine made a written “formal request for a hearing before the Tennessee State Board of Education on the dismissal action taken against me in your letter of August 18, 1970.”

An informal conference was held on 15 September 1970 in Dr. Torrence’s office, attended by Chapdelaine and others. The next day, 16 September 1970, Dr. Torrence addressed a letter to Chapdelaine advising of an employment arrangement whereby he would be employed for the school year 1970-71, jointly by the University of Tennessee, Nashville Center and Tennessee State University, at a salary of $10,000. Chapdelaine accepted the offer of employment and withdrew his demand for a hearing.

On 11 March 1971 the Chancellor of the University of Tennessee, Nashville Center and Dr. Torrence addressed letters to Chap-delaine advising that he would not be employed full time for the academic year 1971-72. The Chancellor felt it was necessary to “employ a math instructor with a terminal (jargon for Ph.D.) degree”, but significantly he offered part-time employment. Dr. Torrence offered part-time employment conditioned upon teaching demands and budgetary justification.

At this point, on 11 March 1971, therefore, the record shows that Chapdelaine’s services had been satisfactory. In no sense did these letters constitute charges as required by § 49-1421 T.C.A., and yet, in order to invoke the appropriate provisions of the law they must be so treated. Otherwise, Chapdelaine had no statutory remedy.

V.

Section 49-1421 T.C.A. requires that after written notice of charges are filed, the board of education must hold a hearing in the manner provided in § 49-1416 T.C.A. with the provision that where this section refers to the “superintendent” it shall be treated, in this regard, as referring to the chairman of the state board of education. Reading it as thus modified, § 49-1416, as it existed at that time, required that the chairman of the State Board of Education schedule a hearing on the charges. The statute contemplates a full evidentiary hearing of an adversary nature.

By letter dated 5 April 1971, Dr. E. C. Stimbert, Commissioner of Education and ex officio chairman of the State Board of Education, acknowledged the receipt of the request for a hearing and suggested an informal conference on 14 April 1971, in his office. This conference was held and by letter dated 23 April 1971, Commissioner Stimbert advised Chapdelaine as follows:

After reviewing the matter of your employment at Tennessee State University, I have concluded that there is no evidence of undue prejudice against you; and I, therefore, support the administrative decision made by the president.
It is regrettable that you were misinformed about the acquisition of tenure; but, nevertheless, university officials are without power to alter regulations established by the State Board of Education prior to your employment. There being no grounds for granting a hearing before the State Board of Education, your request is denied.

It is evident that Dr. Stimbert was relying upon the 1966 abortive effort to change the probationary period from three to five years.

It is also evident that the denial of the demanded hearing frustrated the law and deprived Chapdelaine of constitutional due process.

This suit was instituted on 1 September 1972, approximately seventeen months after the final action taken by the Commissioner of Education (Chairman of the Board).

Defendants vigorously insist that this action is barred by the provisions of § 49-1417 T.C.A. This section, made applicable by § 49-1421, provides for judicial review by petition filed in the Chancery Court “within thirty (30) days from the receipt by the teacher of notice of the decision of the board”.

The State Board of Education did not act, according to the record; it reached no decision. The action taken was that of the chairman alone and does not purport to be the action of the Board. Obviously plaintiff may not be denied a hearing by individual action of the Board and then have his suit abated by individual action of the chairman, for failure to appeal from a nonexistent Board decision. Such a procedure completely frustrates fairness and makes a mockery of constitutional due process. Had the Board acted — even without a hearing— we would have reached a contrary conclusion.

We are not willing to hold, under all the facts and circumstances of this case, that plaintiff was guilty of laches in the prosecution of his suit.

We limit this holding however to those cases wherein the hearing contemplated by § 49-1416 is denied or where a teacher is terminated without the preferment of written charges. In such cases, the delay in the institution of the suit does not constitute a bar to the action but is a factor weighing very heavily upon the back pay to be awarded the dismissed teachers.

In holding that Chapdelaine was wrongfully discharged, we are not unmindful of the fact that budgetary limitations forced a decrease in personnel.

When any educational institution is required, for any reason, to reduce its teaching force, a decent regard for the spirit and purpose of the tenure laws and for fundamental fairness demands that non-tenured teachers be first dismissed followed by tenure teachers in the order of their seniority, with due regard being given to certifications and other controlling considerations. There is no proof in the record indicating that this procedure was followed. In fact, there,, is a strong suggestion to the contrary. The burden was on defendants to show that their actions were fair and conformed to the tone and tenor of the tenure laws. They did not meet that burden.

VI.

We next consider the Chancellor’s award of the sum of $12,500.00.

While the Chancellor treated this as “damages”, we think that is an unfortunate characterization. The word “damages” connotes a recovery for hurt, harm or injury inflicted upon an injured party. We are not dealing here with damages in the conventional sense of the word. The award was simply an enforced restitution of unpaid wages to the extent they were not mitigated. In common parlance this was an award for back pay.

We embark on this discussion with certain fixed principles of law by which we must be guided. At the outset we recognize that our review of the Chancellor’s decree is de novo, accompanied by a presumption of the correctness, unless the evidence preponderates against the findings upon which the decree is based. Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130 (1971).

Secondly, the measure of damages for the breach of an employment contract is what would have come to plaintiff had the contract not been breached, less what he earned, or might have earned, in some other employment, by the exercise of reasonable diligence. Godson v. MacFadden, 162 Tenn. 528, 39 S.W.2d 287 (1931).

The burden is on the defendants who breached the contract to prove what amounts should be offset in mitigation of damages. Glazer v. Glazer, 278 F.Supp. 476 (E.D.La.1968); Rolfe v. County Board of Education, 391 F.2d 77 (6th Cir. 1968); Jef-fers v. Stanley, 486 S.W.2d 737 (Tenn.1972).

We note the Chancellor’s findings: The proof shows that since his discharge the petitioner has (1) written science fiction, (2) learned the surveyor’s trade, (3) helped in a family business and (4) attempted various publishing endeavors. The proof shows a minimal return from these projects but the Court is not convinced that the results of these endeavors have no value. The petitioner elected to proceed in these projects which might in the long run prove more valuable than his position with the University.

Ample, material evidence supports these findings and the conclusion that an award of one year’s salary was fair and just.

We concur in the holding of the Chancellor that this is not a proper ease for reinstatement although we do not precisely agree with his reasoning.

VII.

We are not impressed with the insistence that this action against these defendants, as state officials engaged in the pursuit of their official duties, is a suit against the state and, therefore, is barred by sovereign immunity.

Article 1, Section 17 of the Constitution of Tennessee provides in pertinent part:

Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct. (Emphasis supplied).

Section 49-1417 T.C.A. gives the Chancery Court jurisdiction of actions brought by tenured teachers to review their dismissal.

Cities and counties are arms of the state and such immunity as they claim is wholly derivative from the state itself, and this Court has consistently approved awards of back pay as to teachers in city and county school systems. See e. g., Jeffers v. Stanley, supra; Wagner v. Elizabethton City Board of Education, 496 S.W.2d 468 (Tenn. 1973).

VIII.

The State contends that mandamus is not a proper remedy in a case such as this but concedes that a mandatory injunction will lie. In part the State asserts in its brief that “traditionally a mandatory injunction and a writ of mandamus have been used almost interchangeably”, citing Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871 (1901).

Under Tennessee law a suit for mandamus is an appropriate remedy under the Teachers’ Tenure Act. Blair v. Mayo, 224 Tenn. 108, 450 S.W.2d 582 (1969).

On remand, the peremptory writ of mandamus will accordingly issue directing the Board of Regents of the State of Tennessee to pay to the petitioner the sum of $12,-500.00 plus interest since November 26, 1973.

The decree of the Chancellor is

Affirmed and remanded.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

OPINION ON PETITIONS TO REHEAR

Both parties have filed petitions to rehear.

Chapdelaine’s petition contains an elaborate discussion of his constitutional right of due process and complains primarily of the fact that he did not receive written charges or notice of dismissal and was not afforded an adversary confrontation. We agree. And we so held. It was because of these procedural irregularities that we permitted the Chancery Court’s award of back pay to stand.

Upon reconsideration, we continue to be of the opinion that this is not a proper case for reinstatement.

The State’s petition insists that we failed to consider § 20-1702 T.C.A. relating to the sovereign immunity of the State. Section VII of the main opinion discusses this issue. We reiterate that “we are not impressed with the insistence (that this) is a suit against the State and, therefore, is barred by sovereign immunity.”

The college and university teachers’ tenure law, as incorporated in § 49-1421 T.C.A., and the regulations promulgated pursuant thereto, would be “as sounding brass, or a tinkling cymbal”, if it did not carry with it the coordinate right of a tenured teacher to seek back pay in wrongful dismissal cases.

The State hyperbolizes horrendous happenings as the inevitable result of the Court’s ruling. A fair example, taken from its brief:

It is estimated that at Memphis State University alone the Court has committed in excess of $10,000,000.00 for the lifetime payment of mediocre in-instruction. (Emphasis supplied)

We are astounded at this allegation — so astounded that we decline to treat it as an admission. If it be true, the situation at Memphis State is in urgent need of immediate remedial action.

If the teachers’ tenure laws have tended to promote mediocrity, the fault must lie with the school administrators and their failure to take appropriate affirmative action to weed out the mediocre and the misfits. When they do not have the courage to terminate mediocre teachers prior to their attainment of tenure status, they have no standing to criticize the courts for the enforcement of the laws. The law permits colleges and universities to lengthen the probationary period — in fact it may be prolonged indefinitely. If they have sat idly by and galvanized incompetents into permanent fixtures, they have only themselves to blame. The Legislature gave them a sound and workable law. When the skipper of a ship ignores his compass and winds up on the reefs and rocks, he is not in a position to point the finger of blame at those who observe and assess the consequences. Hopefully, this opinion will result in many houses being placed in order.

This opinion, however, does not mean that all college and university professors attained tenure after three years of satisfactory service coupled with re-employment. Those teachers with actual notice of the five-year rule, or whose contracts contained apt five-year provisions or references, are not affected by this holding. Chapdelaine was employed with the understanding that he would attain tenure status at the end of three years and the 1961 regulation so provided.

The petitions to rehear are respectfully denied.

All concur.

      . The record reflects that the State Board of Education adopted a resolution on 11 February 1966 changing the probationary period from three to five years; however, this regulation was not approved by the Attorney General and was not filed with the Secretary of State. These are conditions precedent to the effectiveness of such rule or regulation, under § 4-502, T.C.A., and the failure to comply with them rendered the changes inoperative and ineffective and continued the 1961 regulation in force.

      . These are state institutions. Tennessee State University functions under the supervision of the Board of Regents. The University of Tennessee, Nashville Center, is under the supervision of the Board of Trustees of the University of Tennessee.


source: Caselaw Access Project

license: Public Domain

text:
    Tony Glenn RAST, Appellant, v. R. V. TERRY et ux., Elizabeth C. Terry, Appellees.
    Supreme Court of Tennessee.
    Jan. 12, 1976.

      Michael D. Galligan, McMinnville, DeWitt Puckett, Smithville, for appellant.
    W. G. McDonough, McMinnville, for ap-pellees.
   OPINION

HENRY, Justice.

This is a suit to set aside a tax deed.

The principal basis of the attack by the former property owners, who held the property as tenants by the entirety, is lack of actual or constructive notice of the tax sale. This, in turn, rests upon the alleged failure of the county sheriff to make due return of the process, “not to be found in my County” as required by Section 21-212 T.C.A. A secondary basis is that the record does not show that the Court directed the Clerk and Master to make publication as provided by law for non-residents. The Chancellor upheld these contentions, declared the tax deed to be void and set it aside.

We disagree.

I.

By consent of the parties this controversy was submitted to the trial court for determination on the pleadings.

It is alleged in the complaint:

The record indicates that process was returned as to R. V. Terry “not to be found in my County” .
It was averred in the answer: It is admitted . . . that the Sheriff, being unable to serve the summons in the matter on the Terrys, or either of them, returned said summons marked “not to be found in my County.”

When the allegations of the complaint are admitted in the answer the subject matter thereof is removed as an issue, no proof is necessary and it becomes conclusive on the parties. Gibson’s Suits in Chancery, § 410 (Fifth Ed.)

We, therefore, hold that the record shows that process was returned “not to be found in my County.”

II.

Next, the Chancellor held that “the record does not disclose that there was any order by the court authorizing or directing the Clerk and Master to make publication. . . ."

The matter of publication is governed by statute. Section 21-212 T.C.A. outlines the conditions under which personal service of process may be dispensed with, and concludes with the proviso:

To dispense with process in either of the above cases, the facts shall be stated under oath in the bill, or by separate affidavit, or appear by the return. (Emphasis ours).

Section 21-213 T.C.A. provides, in pertinent part:

(T)he clerk, as soon as the necessary affidavit is made, shall enter upon the rule docket an order requiring the defendant to appear at a certain day therein named

It will be noted that this statute, in precise terms, would only authorize the rule docket entry in those cases supported by affidavit. When this section and the preceding section are read in the light of their manifest purpose, it becomes evident that it was the legislative intent that the docket entry be supported by affidavit or return. This is the construction placed upon these statutes by Gibson’s Suits in Chancery, Sec. 205 (Fifth Ed.), wherein it is said:

(T)he clerk as soon as the necessary affidavit or return is made, shall enter upon the rule docket an order. (Emphasis ours)

Section 21-214 T.C.A. provides that “the clerk shall forthwith cause a copy of this order to be published. . .”

The statutory scheme obviously contemplates that the clerk perform these ministerial duties without any order of the court directing publication.

We so hold.

From the facts, as found by the Chancellor, that a return not to be found etc., was not made, and that the court did not issue an order directing publication, the chancellor concludes that the defendants were not served with process or brought into court by publication. Assuming the facts so found to be true, the conclusion reached is a non-sequitur and is an incomplete and insufficient basis for voiding the tax deed.

This actually disposes of the assignments made in this Court, but it leaves the controversy dangling without decision. This record is not in shape for orderly appellate review nor is it sufficiently complete to support a decision on remand.

III.

The Chancellor, in his memorandum opinion, said in part:

All of the tax proceeding was conducted while the undersigned was Chancellor. The Court can recall of his own knowledge that the tax suit in question was proceeded with only with great difficulty. A large part of the problems came as a result of the failure of officers to serve process. The Court recalls that at one time the entire tax proceeding was halted due, as this Court recalls, to the Court’s belief that large numbers of defendants were not properly before the Court.

This is a significant — and perhaps controlling-finding, but it is totally lacking in support in this record, and adequate appellate review is precluded.

We are left with no choice but to vacate the judgment and remand for further proceedings. On remand the Chancellor will hear proof designed to clarify the issues presented in this controversy. We identify the issues but do not restrict the Chancellor to those discussed herein.

The threshold determination on remand must be the efficacy of defendant’s affirmative plea of the statute of limitations as incorporated in § 67-2025 T.C.A. which provides, except as to persons laboring under disability, that

No suit shall be commenced in any court of the state to invalidate any tax title to land after three (3) years from the time said land was sold for taxes. .

The complaint alleges that “(t)he record indicates that the sale was conducted on March 5,1970.” The answer avers positively that the sale was held on March 5, 1970. However, the tax deed exhibited to the answer shows affirmatively “upon the 11th day of May 1972, said tract or parcel of land was struck off and sold to Tony Glenn Rast”. The suit to set aside the tax sale was instituted on 5 May 1973, or over three years after the land was sold, if the sale was in fact conducted on 5 March 1970.

This, however, does not in and of itself require the dismissal of plaintiff’s suit. It is fundamental that suits to collect delinquent taxes are proceedings in rem; however, it is basic to their validity and vitality that the taxpayer be before the court by actual or constructive service of process. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737 (1964). These suits have as their objective the enforcement of tax liens, but not by confiscation. Where the taxpayer is not properly before the court the resulting decree and sale is a nullity as to him and may be assailed at any time. Tennessee Marble & Brick Co. v. Young, 179 Tenn. 116, 163 S.W.2d 71 (1942). See also, Naylor, supra. If it be established on remand that the tax sale was void, § 67— 2025 T.C.A. is not applicable.

Section 67-2023 T.C.A. specifies that “a tax deed of conveyance shall be an assurance of perfect title to the purchaser” and may only be invalidated by “proof that the land was not liable to sale for taxes or that the taxes . . . have been paid before said sale.”

The complaint makes no such allegations. It is bottomed solely upon certain alleged procedural irregularities in connection with the sale.

But again the applicability of this Code section must yield to the proposition that a void decree will not support a tax title and the statute presupposes a valid vestiture of title in the purchaser. Naylor v. Billington, supra.

Thus it is that the final determination of the Chancellor must ultimately depend upon the proof with respect to notice. This Court will not look with favor upon an attack made upon a tax sale, where the taxes sued for were actually delinquent and unpaid at the time of the sale and adequate public notice was given. An additional relevant consideration is whether the tax records indicated the address of the land owner.

Upon remand leave to either party to propose appropriate amendments will be freely given, and the Chancellor will consider all relevant facts, to the end that the situation be fully developed and this controversy be decided on the basis of a complete and orderly record.

We caution that these facts must be developed by proof, either in the form of direct testimony, record evidence or stipulations.

Reversed and remanded

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . This was not a proper case for submission on the pleadings, without an accompanying stipulation of fact, since sharp factual issues were involved. Had either party made a motion, under Rule 12.03 Tenn.R.Civ.P., for judgment on the pleadings, the court, upon proper analysis of the pleadings, would, or should, have treated it as one for summary judgment under Rule 56. When the parties agree to submit a case on the pleadings, they have, in effect, made joint and several Rule 12.03 motions and when “matters outside the pleadings” are necessary to the determination of the suit, resort to the Rule 56 procedure is mandated. This was such a case.

      . In reaching this conclusion we have not considered Exhibit No. 1 to the Motion for a New Trial, which shows that as to R. V. Terry, process was returned “not to be found in my County”. A motion for a new trial is a mere pleading and is not evidence of what occurred at the trial. Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68 (1951). These exhibits were neither proved, admitted nor incorporated in a bill of exceptions.

      . The suing taxpayer’s failure to pay the taxes in this case is compounded by the fact that in an earlier conveyance in the chain of title there was an express agreement that he would pay the very taxes, the non-payment of which prompted the tax sale.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. James Leon BULLINGTON, Respondent.
    Supreme Court of Tennessee.
    Jan. 26, 1976.

      John B. Hagler, Jr., Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Harold D. Hardin, Gracey, Maddin, Cow-an & Bird, Seth Norman, Nashville, for respondent.
   OPINION

BROCK, Justice.

The respondent was found guilty of murder in the first degree for the killing of Orlin Alexander and was sentenced to the penitentiary for a period of 21 years. He appealed to the Court of Criminal Appeals and that Court, in a 2 to 1 decision, found that the evidence preponderated in favor of the respondent upon the issues of premeditation and voluntary intoxication and, accordingly, reversed his conviction of the offense of first degree murder; and, subject to the approval of the State, affirmed a conviction of murder in the second degree with punishment reduced to 10 years in the penitentiary, a procedure authorized by this Court in Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946). We granted the petition for certiorari filed by the State seeking to review the action of the Court of Criminal Appeals. The issue is whether or not the evidence preponderates against the finding of the jury that the respondent committed the killing with premeditation and deliberation.

The brief of the State contains a comprehensive summary of the evidence which we paraphrase. The respondent shot and killed Orlin Alexander on July 11, 1972, in Macon County, Tennessee. The respondent, his uncle, Hollis Bullington, and his friend, Lynn Shrum, were the only witnesses to the killing. The uncle testified that respondent picked him up in his pickup truck about 1:00 p.m., that they bought approximately 12 cans of beer, that they drove around through the countryside for a considerable period of time and between 4:00 and 5:00 p.m. went to a deserted farm where they chanced to meet Lynn Shrum who was attending to his dogs. They engaged in a friendly conversation and drank some beer together. The respondent and Shrum struck a bargain whereby respondent purchased from Shrum a .32 caliber Smith & Wesson pistol for the sum of $40.00. Upon obtaining this pistol, the respondent proceeded to test it out by shooting at some beer cans. He succeeded in hitting at least one of the cans. Respondent then placed the pistol and ammunition in his pickup truck which was parked nearby. Sometime thereafter, the deceased, Orlin Alexander, came riding by on his horse and stopped when he reached the respondent, his uncle and Shrum. Both Shrum and Hollis Bull-ington testified that the conversation was friendly and that no hard feelings were evident. The respondent asked to ride Alexander’s horse but Alexander refused the request stating that the horse was not thoroughly broken and, consequently, that respondent might be injured if he attempted to ride the horse. Both witnesses agree that this refusal did not appear to make the respondent angry. All present continued to drink beer and to engage in friendly conversation. Finally, the discussion centered upon politics and elections. Shrum testified that, without warning, the respondent got up, went to his truck and returned with the pistol. Shrum was not alarmed by this and thought that the respondent was preparing to shoot at another beer can. Then, suddenly, Shrum realized that something was wrong. The respondent waved him away with his hand. Shrum said, referring to respondent by his nickname, Pete, “Pete, don’t do it. Don’t do it.” At this point, the respondent said to the deceased, Alexander, “If you don’t tell me you are going to vote, I am going to kill you.” The deceased replied, “Yeah, I will vote.” But despite this reply the respondent proceeded to shoot the deceased twice in the chest, the bullets entering approximately ½ to 1 inch apart. All agree that the deceased was unarmed, but, according to Hollis Bullington, the deceased was moving slightly toward the respondent when he was shot. However, both witnesses insist that neither man showed any signs of anger. Shrum testified that the respondent looked abnormal at the time of the shooting, explaining, “Well, he had lost his color, and his voice was trembling.” Shrum was asked, “Have you been around this boy when he was drinking?” to which he answered, “Yes, sir.” Shrum was further asked, “Did that appear to you to be what was wrong with him?” Shrum replied, “No, sir, I didn’t think he had had that much alcohol.” Hollis Bull-ington testified that the defendant did not act abnormally just prior to the shooting and that the beer which the defendant drank on that day was his first in about nine months. The evidence does not show clearly how much beer was consumed by the respondent prior to the shooting. No motive for the killing was clearly established although it appears from both the testimony of the respondent and his uncle, Hollis Bullington, that a year or two prior to this killing the deceased and the respondent had some kind of altercation at a beer tavern.

As the fatal shots were fired, both Shrum and Hollis Bullington fled the scene, followed by the respondent. The deceased was left lying on the ground. Some time later the respondent was arrested several miles from the scene as he walked along a road. Bobby Joe Carman, the Deputy Sheriff, made the arrest and testified that the respondent was staggering down the road at the time he was apprehended. The Sheriff, Maburn Dyer, testified that the respondent was drunk at the time he saw him shortly after the arrest. The Sheriff also testified that a blood sample was taken from the respondent and was tested at the hospital but that the written report of the test results had been misplaced or lost. He stated that his recollection was that the written report indicated that respondent’s blood was .31 percent alcohol. Ed Ashburn, an agent with the Tennessee Bureau of Criminal Identification, testified that he talked with the respondent several hours after the crime was committed and that he appeared to be intoxicated at that time. He further testified that the respondent said that he thought he remembered shooting the deceased but that he didn’t remember why he had done so.

The proprietor of a grocery store alongside the road where respondent was arrested testified that just prior to the arrest respondent came into his store after leaving his pistol outside on a gasoline pump, purchased a soft drink which he carried with him, went back outside, picked up his pistol and walked on down the road. This witness testified that the respondent did not appear to be acting normally at the time. Another witness, who was acquainted with the respondent, testified that he saw the respondent sitting in the police car after the arrest and that he was drunk, red-eyed and babbling. Still another witness testified that although he was acquainted with the respondent that the respondent did not recognize him after the arrest.

The respondent testified in his own behalf. He stated that he went to his father’s house sometime during the middle of the day and then over to the home of Hollis Bullington, his uncle. He returned to his father’s house and then went back to his own home. Thereafter he drove out in his pickup truck and chanced to overtake his uncle, Hollis Bullington, who was walking on the highway. He stated that he had had nothing to drink up to that point. The respondent invited his uncle, Hollis Bulling-ton, to go along with him in his pickup truck. They purchased 6 or 12 cans of beer which they proceeded to drink. He stated that they drove around the back roads for a while, watched some people swim and, after an hour or two, went to the deserted farm where they encountered Shrum. The respondent testified that he recalled the deceased getting off his horse but that his memory began to fade at that point. He remembered asking to ride the horse, talking about elections, and some gunshots. He testified that about a year or two prior to the killing he and the deceased, Alexander, had some trouble at a beer joint over a shuffleboard game. He stated that only words were exchanged and that no fight resulted. He denied that any ill will resulted between him and the deceased.

From the foregoing evidence, the jury found that the killing was done with premeditation and deliberation. Does the evidence preponderate against that finding?

The premeditation-deliberation element of first degree murder requires that the act be performed with a cool purpose. Drye v. State, 181 Tenn. 637, 184 S.W.2d 10 (1944); Winton v. State, 151 Tenn. 177, 268 S.W. 633 (1925); Turner v. State, 119 Tenn. 663, 108 S.W. 1139 (1908); Poole v. State, 61 Tenn. 288 (1872); Dale v. State, 18 Tenn. 551 (1837). In order to constitute murder in the first degree, the cool purpose must be formed and the deliberate intention conceived in the mind of the accused, in the absence of passion, to take the life of the person slain. Winton v. State, supra. If the purpose to kill is first formed during the heat of passion, the accused, to be guilty of first degree murder, must have committed the act after the passion has subsided. “Passion” as here used means any of the human emotions known as anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Drye v. State, supra.

“The mental state of the assailant . rather than the length of time . is the material point. . . . The mental process . . . may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object sought to be accomplished — the end determined upon.” Clarke v. State, 218 Tenn. 259, 268, 402 S.W.2d 863 (1966).

Once the fact of killing has been established, the law presumes it to be murder in the second degree. Witt v. State, 46 Tenn. 5 (1868). And, the burden is upon the state to prove premeditation-deliberation which raises the degree of the crime to first degree murder. Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972). If the killing is accomplished by poisoning or by lying in wait, premeditation is obvious. But, in all other cases a conviction of first degree murder must be supported by evidence of some other kind of willful, deliberate, malicious, and premeditated killing. Drye v. State, supra. The nature of the fact to be proven, i. e., the mental state of the accused, is such that ordinarily only circumstantial evidence is available. The circumstances of the killing itself may afford the needed proof. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). Thus, one way of proving .premeditation is to show that past hard feelings existed between the defendant and his victim. Leonard v. State, 155 Tenn. 325, 292 S.W. 849 (1927). Another circumstance from which the inference of premeditation may be drawn is repeated shots or blows inflicted upon the victim. Franks v. State, 187 Tenn. 174, 213 S.W.2d 105 (1948); Bass v. State, supra.

Admittedly, the question presented here is a close one, but we are constrained to hold that the evidence supports the finding of premeditation and does not preponderate against it. On the one hand, the failure of the evidence to disclose a motive for the killing is in favor of the respondent, but, on the other hand, the fact that the deceased was unarmed and offered no provocation to the respondent, the lack of any evidence that the respondent’s reason was dethroned by anger or any other “passion,” the fact that the respondent walked several feet to his truck to obtain his pistol and then walked back toward the deceased while pointing the pistol at him and threatening him despite the pleading of the respondent’s friend, Shrum, “Pete, don’t do it” and finally the careful and deliberate dispatch of, not one, but two bullets into the breast of the deceased are all circumstances tending to favor the State on the issue of premeditation.

We are also of the opinion that the evidence does not preponderate against the finding of the jury upon the related issue of the respondent’s intoxication at the time of the killing. Here, too, there is evidence upon both sides of the issue. The intoxication of an accused is no justification for crime, but its existence may negate a finding of specific intent. Thus, when the inquiry is whether or not the accused is guilty of first degree murder, it becomes relevant to know whether or not the accused was in a state of intoxication and, if so, the extent of its effect upon his mental state. Of course, if the voluntary drunkenness of the accused exists to such an extent that he is incapable of forming a premeditated and deliberate design to kill, he cannot be guilty of murder in the first degree. Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149 (1945). Moreover, if the intoxication of the accused is not sufficient to render him totally incapable of premeditation and deliberation, nevertheless, the jury may consider his state of intoxication along with all other facts of the case to determine whether the killing was the result of a premeditated purpose or resulted from passion excited by inadequate provocation; if the former, he is guilty of murder in the first degree, but if the latter, he is guilty only of second degree murder. Cartwright v. State, 76 Tenn. 376 (1881); Lancaster v. State, 70 Tenn. 575 (1879); Haile v. State, 30 Tenn. 154 (1850).

It has been the rule in this state for more than a century that a judgment of conviction in a criminal case will be set aside and a new trial awarded if the appellate court is convinced that the evidence preponderates against the verdict of conviction. Cochran v. State, 26 Tenn. 544 (1847); Garland v. State, 32 Tenn. 18 (1852). But, in reviewing the evidence upon appeal for this purpose the appellate court must take the verdict as having established the credibility of the State’s witnesses and the conviction will not be disturbed unless the evidence clearly preponderates against it and in favor of the innocence of the accused. Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970). A review of the evidence in this case has led us to the conclusion that the evidence does not preponderate against the verdict of the jury finding the respondent guilty of murder in the first degree.

Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court in all respects. The respondent will pay the costs incurred in this Court.

FONES, C. J., and COOPER, HENRY and HARBISON, JJ., concur.


author: MATHERNE, Judge.

text:
    Dallas JOHNSON and wife Gladys Johnson, Appellants, v. Iva HAYNES, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Sept. 12, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.

      Thomas Privette, Jr., Knoxville, for appellants.
    Joel H. Anderson, Jr., Knoxville, for ap-pellee.
   MATHERNE, Judge.

The plaintiffs-buyers sue for specific performance of the sale of land at auction. The defendant-owner relies upon the statute of frauds and the failure of the buyers to comply with the terms of the sale.

The chancellor held the sale not enforceable because the requirements of the statute of frauds were not met, and he also held the buyers failed to meet the terms of the sale. The plaintiffs appeal assigning both findings of the chancellor as error.

I.

By written contract dated June 14, 1973, signed by the seller, the seller did place with the auctioneer, Zirkle-Rainwater Auction Co., a tract of land lying in the 15th Civil District of Knox County, Tennessee “described and bounded as follows: Being 25 A. more or less, located on old Sevierville Pike,” to be sold by the auctioneer “at the highest price bid when put up at Public Auction by the party of the second part (auctioneer) and all sales under this contract are to be confirmed by First party (seller).” The seller represented she had legal right and full power to convey the property to the purchasers, and she did “agree to make good and sufficient Warranty Deeds to all lands, parcels, or lots sold under this contract.” The contract does not state the terms for payment of the land sold thereunder.

The auctioneer prepared printed posters advertising the sale to be held Saturday, September 22, at 2:30 P.M. The poster gave the location of the property which was stated to contain 17.42 acres. The poster provided “Terms Announced at Sale,” and concluded with “Sale conducted for owners by: Zirkle-Rainwater Auction Company.” On the reverse side of the poster a plat of the property was pictured, showing the property divided into four lots. The poster stated the property, “Will be offered in tracts and as a whole.”

The defendant-seller testified she was well acquainted with the poster, and she had several copies in her possession at the time. The defendant-seller further testified she attended the auction. The poster did not state all sales would be subject to confirmation by the seller. The defendant-seller did not at the auction require that statement be made, and it was not made, to the potential bidders.

The auctioneer, immediately prior to calling the sale, announced the terms of payment were 10% down at time of sale. Further terms announced were: 23V3% to be paid with delivery of deed, the balance over one and two years equally at 8½% simple interest; or cash. The auctioneer testified the credit terms were not mandatory, but were offered with the idea of thereby inducing more people to bid. The auctioneer testified he made no statement concerning a right reserved in the seller to confirm any bid.

The sale was opened and the plaintiffs bid on certain individual lots and ultimately did submit the last, highest, and best bid for all four lots at the one figure of $27,925.00, which resulted in the auctioneer knocking the entire parcel off to the plaintiffs at that figure. The auctioneer kept a record of all bids on a bid sheet printed for that purpose, which bid sheet is filed as Exhibit 2 in the record. This bid sheet shows the plaintiff to be the purchaser at the auction.

The daughter of the plaintiff gave to the bookkeeper of the auctioneer her check in the amount $3,000 payable to the auctioneer. The bookkeeper was requested to temporarily hold the check for the apparent reason money would have to be transferred by the plaintiff from a savings account. The check was accepted by the auctioneer as the 10% down payment. After this controversy arose the auctioneer tendered the check back to the plaintiffs, but it was refused. The check was never presented to the bank upon which it was drawn.

The plaintiff testified he, his wife, and daughter were talking with two representatives of the auctioneer immediately after the sale, and he was asked how he wanted to pay for the land. The plaintiff testified—

“A. Well, my wife said, ‘Let’s pay half now and half a year from now,’ and I said ‘No, let’s pay it all cash.’ He (auctioneer’s representative) said, ‘Well, how do you want it,’ and I said, ‘Just put it down cash.’ That is Mr. Rainwater’s two representatives. I said, ‘Just put it down cash.’ ”

The plaintiff is corroborated in this respect by the testimony of his wife and daughter. The representatives of the auctioneer did not testify, nor is it shown who they were.

The defendant testified that immediately after the auction sale Mr. Zirkle and Mr. Rainwater came to her and gave her a copy of the bid sheet and stated the entire property had been sold for $27,925.00, one half cash and one-half due in one year at 8½% interest. The defendant told them she was satisfied with the sale on those terms. Mr. Rainwater testified, but he was not asked about that conversation with the defendant.

It is to be noted the bid sheet kept by the auctioneer had an entry “½ cash” in handwriting at the lower left side of the sheet. It is not established who made that entry on the bid sheet. Mr. Rainwater testified it was his understanding, as he was told by his bookkeeper, that the plaintiffs, immediately after the sale, told the auctioneer’s bookkeeper they wanted to pay “one-half cash and the balance in a year” and later changed their minds and wanted to pay cash. The bookkeeper was not called to testify. The plaintiff, his wife, and daughter testify the plaintiff offered cash. We cannot accept this hearsay testimony of the auctioneer as to what his bookkeeper said the plaintiff said on the issue of terms of payment. If the defendant-seller was misled by the entry “½ cash” on the bid sheet, she was misled by her agent in the matter. The defendant-owner will not be heard to argue, under this record, that the entry “½ cash” proves the plaintiff-buyer failed to comply with the terms of the sale.

Mr. Rainwater testified he was in charge of the auction and about seven or eight other people from his company were there. He confirmed the auctioneer accepted the plaintiffs’ bid of $27,925.00 for the entire tract. Rainwater was asked about an unex-ecuted warranty deed filed as Exhibit 6 in the record which revealed a sale of the land for $27,925.00, one-half cash in hand paid and the other one-half due in one year. Rainwater stated that paper did not reflect the terms under which the land was sold.

There was some correspondence between attorneys for the parties, until on about December 6, 1973, the defendant’s attorney wrote the plaintiffs’ attorney to the effect a reasonable time had passed and the plaintiffs had failed to comply with the terms of the sale by paying one-half cash and one-half in one year at 8½% interest, and the defendant was therefore “unwilling to sell or transfer to the Johnsons under any conditions.”

According to the record the plaintiffs were willing to pay cash throughout the time, and they do now tender $27,925.00 as payment due under the contract of sale.

II.

We hold, upon the fall of the hammer, there was a valid contract of sale of the land to the plaintiffs for the sum of $27,-925.00, cash. Under the record, we disagree with the chancellor that the plaintiffs failed to meet the terms of the sale.

An auctioneer employed to sell land at public auction is primarily the agent of the seller. In making the sale, the evidence of which a writing signed by the party to be charged is necessary, the auctioneer is also treated as the agent of the purchaser for the purpose of making the written evidence at the time of the sale, but his authority to represent the purchaser is thus limited. Green v. Crye (1928) 158 Tenn. 109, 11 S.W.2d 869.

We therefore conclude the auctioneer had no authority to change the terms of the sale from that as announced at the sale to terms of one-half cash and one-half in one year at 8V2% interest. If the auctioneer did tell the defendant-seller those were the terms of the sale, that statement did not bind the buyer because the buyer elected to pay cash as announced at the sale. There is no showing by any credible evidence that the buyer authorized the auctioneer to change the terms of the sale, after the hammer fell.

The defendant cannot, under the facts, rely upon the provision of the contract she signed with the auctioneer which gave her the right to confirm or reject bids. Where the terms announced at the auction sale include the right in the owner to reject bids, that condition is binding on all bidders, whether they heard it or not. Moore v. Berry (1955) 40 Tenn.App. 1, 288 S.W.2d 465. We hold, however, where the right to reject bids is not stated in the printed posters, nor is it announced at the sale, that right cannot be asserted after the bid is accepted by the fall of the hammer or other act of acceptance by the auctioneer.

The defendant-seller knew the right to reject bids was not in the printed material advertising the auction; she knew the right to reject was not announced at the sale. It would be extremely inequitable to permit the seller to thus keep secret her right to reject a bid which had been accepted by the auctioneer, and to thereby void an otherwise completed sale.

III.

Having determined a contract for the sale of land existed, the question is whether that contract is rendered unenforceable by the statute of frauds, T.C.A. § 23-201(4).

That statute provides:

“23-201. Writing required for action. —No action shall be brought:
(1) . . .
(4) Upon any contract for the sale of lands, . . . Unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.”

The purpose of the statute has been stated to be to protect owners of land from hasty or inconsiderate agreements in respect to the most valuable species of property, and to guard against misunderstandings as to the nature and extent of the agreement. Whitby v. Whitby (1857) 36 Tenn. 473; Ashley v. Preston (Tenn.1931) 162 Tenn. 540, 39 S.W.2d 279. The purpose of the statute is to prevent fraudulent contracts from being proved by perjured testimony. Yates v. Skaggs (1948) 187 Tenn. 149, 213 S.W.2d 41.

In order to satisfy the statute the memorandum must contain the essential terms of the contract expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected without resort to parol evidence. Lambert v. Home Federal Savings & Loan Assn. (Tenn.1972) 481 S.W.2d 770. The statute is satisfied by a group of writings as well as a single writing and all the writings need not be signed by the party to be charged if there is sufficient reference therein to establish the necessary connection. Yates v. Skaggs, supra.

The writings to be here considered are: (1) the contract between the seller and the auctioneer; (2) the posters advertising the sale; (3) the bid sheet kept by the auctioneer. The only paper signed by the seller is the contract she entered into with the auctioneer.

The auctioneer contract signed by the seller expressly states the seller will give a good warranty deed “to all lands, parcels or lots sold under this contract.” The description of the land as contained in the auctioneer’s contract might be insufficient to satisfy the statute. That insufficiency, if any, was corrected by the printed posters which contained a survey plat of the entire property and each lot thereof with course and distance calls for each lot. The posters provided “Sale Conducted for Owners By: Zirkle & Rainwater Auction Company.” That statement implies there was an agreement of some nature between the owner and the auctioneer. The statement relates back to the written contract dated June 14, 1973, between the owner and the auctioneer, signed by the owner. The auctioneer bid sheet shows the highest, best, and last bid on the land sold as advertised by the auctioneer under its contract with the owner was the bid of the plaintiff. We hold the instruments noted, taken together, serve to satisfy the statute. Upon the fall of the hammer there was a sale to the plaintiff evidenced by a memorandum in writing signed by the party to be charged.

Parol proof is admissible to show the terms of the sale because the writing evidencing the sale (poster) provided “Terms announced at sale.” It is not necessary that the consideration be set out in the writing. Hughes v. Herbert (1929) 159 Tenn. 187, 17 S.W.2d 16. There was some difference between the parties about the total consideration as reflected on the bid sheet, but that was settled to be $27,925.00.

We note there is really no argument here on the issue of the sale. The seller, after the sale, decided to ask for interest on one-half the purchase price for one year. The buyer insists on paying cash as it was announced he could do.

We conclude the sale as handled meets all requirements of the statute of frauds, and the contract is enforceable against the seller.

It results the decree of the chancellor is reversed and a decree will be entered in this Court ordering specific performance of the sale of the land, upon the payment to the seller of the sum of $27,925.00. This cause is remanded to the Chancery Court of Knox County, Tennessee, for such further orders as may be necessary in order to effect the specific performance as herein ordered. The costs in the Chancery Court and in this Court are adjudged against the defendant-appellee.

CARNEY, P. J., and PARROTT, J., concur.


author: OLIVER, Judge. GALBREATH, Judge

text:
    Lloyd HARRISON, alias, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 22, 1975.
    Certiorari Denied by Supreme Court Aug. 11, 1975.

      Rufus W. Beamer, Jr., and Randall E. Nichols, Knoxville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant-in-error.
   OPINION

OLIVER, Judge.

Represented in his trial and here by two appointed attorneys of the Knoxville Bar, Harrison is now before this Court upon his appeal in the nature of a writ of error contesting his conviction of robbery, for which he was sentenced to imprisonment in the State Penitentiary for not less than five nor more than 10 years.

The defendant’s first Assignment of Error assails his conviction upon the usual ground that the evidence was insufficient to warrant and support the jury verdict and preponderated against it and in favor of his innocence.

The essential substance of the prosecution evidence, obviously accredited by the jury, showed that about 11:00 p.m. on 28 July 1973 the defendant entered the Convenient Food Mart in Knoxville and bought two six-packs of beer and was checked out by a cashier; that he went to the telephone and then re-entered the check-out lane and got in the front of the line and asked for and was given some change and returned to the telephone; that while talking on the phone in a loud voice he dropped his beer and the store manager re-sacked it for him; that after finishing his telephone conversation he stood by the front door and greeted several customers as they entered and left; that he then started to walk out of the store but turned quickly and went back inside, and with his hand under his shirt, told the store manager, “Give me the money, I’m going to shoot you”; that the manager gave him the money from both cash registers, which turned out to be $364, and the defendant stuffed it into his pockets and ran out; that the manager got into his car and started looking for the defendant, spotted him “darting down” a nearby alley and returned to the store and called the police and when they arrived two or three minutes later he gave them a description of the defendant and where he last saw him running through the alley. When overtaken and captured in his flight, the defendant had $120 in bills and change in his pockets and dropped more money on the ground just before he was caught, making a total of some $360. The manager picked the defendant out of a line-up at police headquarters the following morning. Both the manager and the cashier identified him in court.

The defendant did not testify. He presented his cousin Linda Harrison and Mrs. Evelyn Brown. Linda testified the defendant visited her in her apartment about 10:30 p.m. on July 28, 1973 and that Mrs. Evelyn Brown was there at the time; that he wanted to get some beer and she and he walked to the Convenient Food Mart and he bought two six-packs of beer; that Mrs. Brown entered the store while they were there and they conversed briefly; that she and the defendant were in the store 10 or 15 minutes and nothing unusual happened and no robbery occurred while they were there; that the defendant wanted to see her father before resuming his journey to Miami, and as she and he were walking in that direction they saw a man running in the opposite direction (toward town) on Magnolia Avenue; that a few minutes later a police car pulled alongside and one of the officers said he wanted to talk to the defendant and he handed her the sack of beer and walked over to the cruiser where he was handcuffed and taken away. Mrs. Brown corroborated Linda about being in the latter’s apartment when the defendant arrived and about them leaving to go to the store. She said a short time later she decided she needed some things and drove to the store and the defendant and Linda were still there and she talked with them and they left before she did; and that nothing unusual occurred while she and they were in the store.

As the sole and exclusive judges of the credibility of the witnesses and of the weight and value to be given their testimony, Bailey v. State (Tenn.Cr.App.), 479 S.W.2d 829 and cases therein cited; Gordon v. State (Tenn.Cr.App.), 478 S.W.2d 911, very evidently the jury was unable to accord any credence to the testimony of Linda Harrison and Mrs. Brown.

Considered and tested in accordance with the well-known rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged, to which we must adhere, Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223, upon this record there can be no question that the evidence presented by the prosecution fully justified and amply supports the verdict of the jury.

In his first Assignment the defendant also claims the trial court erroneously failed to charge the jury concerning the lesser included offenses of assault and battery, assault and larceny. This complaint was not included in his motion for a new trial. Thus, he is confronted by the settled rule that, having failed to raise these questions in his new trial motion, he is precluded from raising them here for the first time. The law of this State is that, absent any patent invalidating error, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial, and Assignments of Error which were not incorporated in the new trial motion will not be considered on appeal. Jenkins v. State (Tenn.Cr.App.), 509 S.W.2d 240; Pulley v. State (Tenn.Cr.App.), 506 S.W.2d 164; Rule 14(4) and (5) of the Tennessee Supreme Court Rules, adopted by this Court (2 Tenn. Cr.App. 746).

There is no merit in the defendant’s third Assignment that the trial court erred in failing to grant him a continuance to secure the services of other counsel and in failing to replace his appointed counsel when his lack of confidence in them became apparent. The record shows that through the efforts of his attorneys, who were appointed 18 January 1974-75 days before the trial, the State had agreed to recommend a sentence of five years upon a plea of guilty; that after the court carefully explained his rights in the premises, the defendant stated he wanted to enter a plea of not guilty; and that he then told the court he felt like his lawyers had lost interest in his case because he decided to go to trial instead of pleading guilty, and another attorney his mother wanted to employ to represent him was engaged at the time in the trial of a case in another court. This record does not support the defendant’s criticism of his attorneys. In fact, it demonstrates that their representation of him was of a very high order. The trial judge did not abuse his discretion in denying the continuance.

Another groundless Assignment is that the trial court erred in failing to dismiss the jury when, during voir dire examination of prospective jurors, the Assistant District Attorney General inquired whether they would consider the defendant’s background in assessing punishment. The court sustained defense counsel’s objection as to use of the word “background,” stating that the defendant was on trial only for what was charged in the indictment. When the Assistant District Attorney General, very improperly, contested the ruling, the court stated: “Gentlemen, the jury may consider the evidence that is presented to the jury when it is presented; and if that is included within the evidence, of course, they may include it. If it is not, then it wouldn’t be proper.” The matter was dropped and selection of the jury was completed. Defense counsel did not move the court to dismiss the jury panel. The defendant electing not to testify, of course no evidence concerning his background or past record was introduced. This Court’s opinion in McCloudy v. State (Tenn.Cr.App.), 513 S.W.2d 192, which involved an entirely different factual situation, is inapplicable here.

Nor is there any substance to the Assignment complaining that the trial court overruled the defendant’s motion to suppress the store manager’s testimony about identifying him at the police line-up. Following a hearing apart from the jury with reference to the conduct of the line-up, the court found that it was proper and unexceptionable in all respects and that the store manager’s line-up identification of the defendant was not corrupted or tainted in any way. We agree. Although the manager had not seen the defendant prior to the robbery, he observed him while he was in the store, watched him and heard him getting change and using the telephone, re-bagged his beer when he dropped it, watched him standing in the doorway greeting entering and departing customers, and squarely confronted him when he demanded and got the money. The evidence does not preponderate against the trial judge’s finding with reference to the conduct of the line-up and the manager’s identification of the defendant.

The record shows that the defendant’s rights were explained to him before the line-up and he declined to sign a waiver, but two members of the University of Tennessee Law School Legal Clinic talked to him beforehand and then advised the officer he might proceed with the line-up. Notwithstanding that, the defendant now argues he was compelled to participate in the line-up without counsel in violation of the principles promulgated by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The record shows this lineup was conducted the next morning after the robbery, hence prior to the defendant’s indictment. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (a show-up identification immediately after arrest), the Court held that United States v. Wade, supra, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, do not apply to pre-indictment identification proceedings. This Court has so held. Bracken v. State (Tenn.Cr.App.), 489 S.W.2d 261; Russell v. State (Tenn.Cr.App.), 489 S.W.2d 535; Maxwell v. State (Tenn.Cr.App.), 501 S.W.2d 577.

Altogether unmeritorious is the Assignment that blackboard drawings of various streets and alleys in the area of the robbed store were not drawn to scale. Nothing in the record indicates that this was in any way confusing to any witness or prejudicial to the defendant.

Finally, we turn to the defendant’s Assignment that the trial court erred in overruling his motion for a mistrial when the Assistant District Attorney General elicited testimony from one of the arresting officers that he exercised his right to remain silent after being advised concerning his constitutional rights.

During his direct examination, one of the two officers who actually captured the defendant testified he was then placed in another officer’s patrol car “and I read him his rights.” The Assistant District Attorney General then asked this officer whether the defendant made any statement at that time, and the officer replied, “He refused to make any type of statement.” Defense counsel objected and moved for a mistrial, whereupon the court ruled as follows:

“THE COURT: All right. The motion for a mistrial is overruled. But, ladies and gentlemen of the jury, I instruct you that the defendant or the person being apprehended at that time, the suspect, was perfectly within his rights to not make a statement. This officer has testified that he gave him his rights. A person in custody who is given his rights is not obligated to make any statements other than to say who he is. All right.”

The defendant’s insistence is that it was highly improper and in violation of the mandate expressed in Footnote 37 of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, for the District Attorney General to elicit from the officer that he refused to make any statement after being advised concerning his constitutional rights. Miranda’s Footnote 37 states, in pertinent part:

“Lord Devlin has commented:
‘It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not.’ Devlin, The- Criminal Prosecution in England 32 (1958).
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

Of course it was improper for the State to elicit from its witness that the defendant refused to make any statement after being advised of his constitutional rights — including the right to remain silent. Mays v. State (Tenn.Cr.App.), 495 S.W.2d 833; State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25. Manifestly, it is intolerable to penalize an accused for remaining silent or refusing to make a statement to police authorities after being advised of his constitutional right to remain silent in the face of accusation. It is elementary that a person arrested upon a charge of crime, and thus accused thereof, has an absolute and inviolable constitutional right under the Fifth Amendment, applicable to the states by operation of the Fourteenth Amendment (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653), to remain silent. Indeed, Miranda mandates, among other things, that an accused be so advised before interrogation by law enforcement officials. It would be an intolerable anomaly if an accused’s exercise of his constitutional right to remain silent, of which he must be informed before any questioning by law enforcement officials concerning the offense for which he was arrested, could thus be turned against him.

But in this case, as in Flanagan, supra, there is no evidence that the defendant was accused or interrogated by the arresting officers. That case only involved the testimony of a police officer that, after calling his attorney the defendant stated “Well, I’m not going to tell you anything further. I don’t have anything to say.” The Court held that testimony was “without the ambit” of Footnote 37 of Miranda v. Arizona, supra, because “The footnote sentence we think assails the situation where a defendant remains mute or asserts his right so to do when questioned about participating in criminal acts, a silence in the face of accusation or interrogation with respect to crime, from which an inference of guilt might be drawn.” (Emphasis supplied.)

The Court also held in Flanagan that the part of Miranda therein involved is “aimed at measures taken by law officers whose effect is to compel a response from a defendant at the risk of an inference of guilt if no response is made, which is certainly not this case.”

However, as noted, in the case before us the court specifically instructed the jury that a person in custody who has been advised of his rights is not obligated to make any statement and that the defendant was perfectly within his rights in declining to do so. Thus, in effect the court instructed the jury to disregard and give no consideration to the officer saying that the defendant refused to make a statement. Viewed in its total context, we cannot agree with the defendant that this incident so far trenched upon his constitutional rights as to nullify his trial and conviction.

Affirmed.

RUSSELL, J., concurs.

GALBREATH, Judge

(concurring).

Although I did not, when this Court considered the Miranda issue in Flanagan, agree with the view later adopted by the Supreme Court as discussed by Judge Oliver, I am, of course, bound by it.


author: OLIVER, Judge.

text:
    Douglas V. WHISNANT, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 29, 1975.
    Certiorari Denied by Supreme Court Aug. 18, 1975.

      Geoffrey D. Kressin, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, for defendant in error.
   OPINION

OLIVER, Judge.

On January 30, 1974, petitioner filed, in the Criminal Court of Scott County, an “Application for delayed appeal in the nature of writ of error.” He grounded this application on the provisions of TCA § 27-605 which deal with obtaining review by a writ of error. By a cover letter (a copy of which was filed with the application) he sent a copy of the application to the Chief Justice of the Tennessee Supreme Court with a request that it be considered under TCA § 27-605 or be referred by him to the appropriate court for consideration.

In his application, the petitioner alleged that he was tried before a jury and convicted on March 19, 1971 of concealing stolen property and sentenced to one year in the penitentiary; that his court appointed attorney filed a motion for new trial but withdrew it on July 21, 1971; that the petitioner agreed to the withdrawal of the motion for new trial and waiver of appeal when his attorney informed him that such action would increase the chances that the trial judge would run this sentence concurrently with some sentences which he received the same day after convictions on guilty pleas; that his attorney made a motion to have the sentences run concurrently but the motion was denied by the trial judge; and that the sentence imposed for this conviction is presently interfering with his release from the penitentiary.

His prayers for relief were, in substance: (1) that a transcript be prepared and sent to the proper court for review, (2) that the application be treated as a petition for post-conviction relief, if he was not entitled to relief under TCA § 27-605, and (3) for general relief.

On February 23, 1973, the State of Tennessee, through the District Attorney General, answered the application by a motion to dismiss filed in the Criminal Court of Scott County. The State contended that, as the application was for review of his conviction by writ of error under TCA § 27-605 and applications for relief under this statute must be addressed exclusively to the appellate courts, the Scott County Criminal Court was without jurisdiction of the action.

By an order dated March 12, 1973 the judge of the Scott County Criminal Court dismissed the action, holding that the petition “has been filed in the Supreme Court of Tennessee as shown by petitioner’s letter” and that the Criminal Court of Scott County was without jurisdiction to grant the relief requested.

On March 27, 1973, the petitioner filed a motion to rehear in the Criminal Court of Scott County. He attached a letter purportedly from the Chief Justice of the Tennessee Supreme Court advising the petitioner that the Supreme Court was without jurisdiction of the cause and suggesting that he refile his application as a petition under the Post-Conviction Procedure Act. (TCA § 40-3801 et seq.) From the denial of this motion to rehear, the petitioner has appealed. He is represented by appointed counsel on this appeal, although he has acted pro se in all of the earlier proceedings.

Petitioner’s application partakes of some aspects of a request for: (1) an appeal in the nature of a writ of error, (2) a writ of error, and (3) post-conviction relief under TCA § 40-3801 et seq. In order to evaluate the action of the trial judge in dismissing the application we must determine if it meets the criteria for any of these remedies.

As noted, the paper is entitled “Application for a delayed appeal in the nature of writ of error.” Manifestly, the petitioner’s sole purpose is to seek appellate review of his March 19, 1971 conviction and sentence for concealing stolen property. By its own allegations, this document reveals that the time for appealing that conviction by an appeal in the nature of a writ of error has long since passed. (TCA §§ 40-3401, 27-312.)

A delayed appeal can only be granted by a trial court, TCA §§ 40-3818, 40-3820, and then only after an evidentiary hearing upon a petition filed under the Post-Conviction Procedure Act seeking that relief. And a delayed appeal can be granted only if the petitioner was unconstitutionally denied his right to an appeal in the nature of a writ of error from his original conviction. Baugh v. State, 3 Tenn.Cr.App. 121, 457 S.W.2d 887 (1970).

The petitioner confronts insurmountable difficulties in undertaking to obtain appellate review of his conviction under the statutes providing review by writ of error. TCA §§ 27-601 et seq., 40-3402. He avers that, upon the advice of his appointed trial attorney, he withdrew his new trial motion and waived appeal.

In cases tried to a jury, as this petitioner’s conviction trial was, a motion for a new trial overruled by the trial court is a prerequisite to appellate review of the evidence and other matters properly recorded in the Bill of Exceptions. Stiller v. State, 516 S.W.2d 617 (Tenn.S.Ct.1974); Jenkins v. State, 509 S.W.2d 240 (Tenn.Cr.App.1974); Nelson v. State, 4 Tenn.Cr.App. 228, 470 S.W.2d 32 (1971); Parten v. State, 2 Tenn. Cr.App. 626, 455 S.W.2d 645 (1970); Alvey v. State, 1 Tenn.Cr.App. 360, 443 S.W.2d 518 (1969) and cases cited therein. Rule 14(5) of the Rules of Supreme Court of Tennessee, adopted by this Court, provides:

“Error in the admission or exclusion of testimony, in charging a jury, or refusing further instructions, misconduct of jurors, parties or counsel, or other action occur-ing [sic] or committed on the trial of the case, civil or criminal, or other grounds upon which a new trial is sought, will not constitute a ground for reversal, and a new trial, unless it affirmatively appears that the same was specifically stated in the motion made for a new trial in the lower court, and decided adversely to the plaintiff in error, but will be treated as waived, in all cases in which motions for a new trial are permitted.”

See also: TCA §§ 27-311 as amended, 40-2603; Pulley v. State, 506 S.W.2d 164 (Tenn.Cr.App.1973) and authorities therein cited.

The settled law of this State is that in cases wherein a motion for a new trial is a prerequisite to appellate review, including cases tried to a jury — as was this petitioner’s, a writ of error is not available to review the original judgment when no new trial motion was properly presented to and overruled by the trial court. Bennett v. Monroe County Motor Co., 191 Tenn. 345, 233 S.W.2d 55 (1950); Stewart v. Hoffmeister, 16 Tenn.App. 495, 506, 65 S.W.2d 220 (1932); Johnston v. Phillips, 4 Tenn.Civ.App. (Higgins) 662 (1913). Nowhere has the principle been stated as well as in Johnston v. Phillips, wherein the Court said:

“While it cannot be questioned that a party litigant may prosecute a writ of error after more than thirty days’ time has elapsed from the date judgment has been rendered against him, and while it is true that if a bill of exceptions has been made up and filed in a case in the proper time, the taking of the case up by writ of error takes with it the bill of exceptions, it does not necessarily follow that the case can be reviewed on anything other than the technical record on writ of error when no motion for new trial was made within the thirty days as required by law. To hold that a party who has failed to make his motion for a new trial within the thirty days cannot for that reason have his case reviewed on more than the technical record on appeal, but that he can have it so reviewed on writ of error under the same state of facts and on the same record, would be to wholly set at nought the rule requiring motions for new trials to be made within thirty days, for the very apparent reason that in such case, although a party has failed to get a review on appeal, all he must do to reach the same end is to prosecute his writ of error. Such practice would not only wholly nullify the rule requiring motions for new trials to be made within thirty days, but would, in effect, repeal the statute lying back of this rule. For these reasons such practice cannot be indulged by Appellate Courts.”

Thus, since, again, the application shows on its face that there has not been a motion for new trial overruled by the trial judge, review of the petitioner’s judgment of conviction by writ of error is precluded.

Finally, petitioner has asked that the application be treated as a petition for post-conviction relief under TCA § 40-3801 et seq. The attorney for petitioner on this appeal has strongly urged that this would have been the proper course for the trial court to take, citing TCA § 40-3807, which states:

“No petition for relief shall be dismissed for failure to follow the prescribed form or procedure until after the judge has given the petitioner reasonable opportunity, with the aid of counsel, to file an amended petition.”

In Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182 (1970), when faced with a similar contention, this Court stated:

“. . . This is not a case of a dismissal for formal defects, as alluded to in T.C.A. § 40-3807 as not being a proper basis for dismissal without allowing opportunity for amendment; but this is a situation of lack of legal merit appearing upon the face of the petition, and may be dismissed under the authority of T.C.A. § 40-3809.”

Neither petitioner’s claim that he was illegally arrested and searched, nor his bald conclusory averment that he was “coerced” into withdrawing his appeal and motion for a new trial because his appointed trial attorney “misadvised” him as to the possibility of this sentence being served concurrently with his others, stated any grounds for relief under the Post-Conviction Procedure Act. TCA § 40-3805; Arthur v. State, 483 S.W.2d 95 (Tenn.S.Ct.1972); Nelson v. State, supra; State ex rel. Richmond v. Henderson, 222 Tenn. 597, 439 S.W.2d 263 (1969). Therefore, the dismissal of the “Application” without an evidentiary hearing, considered in the light of the Post-Conviction Procedure Act, was proper.

Affirmed.

GALBREATH and RUSSELL, JJ., concur.