Opinion
Opinion filed December 7, 1956.
CERTIORARI.
On petition to rehear decision which had denied petition for certiorari, ground assigned as justification for rehearing that "the opinion of the Court of Appeals may be clarified" would not be further considered where petition made no specification as to what petitioner thought should be clarified.
FROM GIBSONHOLMES HOLMES, Trenton, O'HEARN, THARPE KEATHLEY, Memphis, for petitioner.
ROBERT P. ADAMS, H.H. ELDER, Trenton, for respondent.
Suit for divorce wherein the wife filed a cross-bill for separate maintenance. To review a decree of the Court of Chancery, Gibson County, John T. Gray, Chancellor, dismissing the cross-bill the wife brought error, and to review decision of the Court of Appeals which affirmed the decree, ___, Tenn. App. ___, 296 S.W.2d 849, wife filed a petition for certiorari. Such petition was denied and the wife filed a petition to rehear. The Supreme Court, Per Curiam, held that on petition to rehear decision which had denied petition for certiorari, ground assigned as justification for rehearing that "the opinion of the Court of Appeals may be clarified" would not be further considered where petition made no specification as to what petitioner thought should be clarified.
Petition to rehear denied.
On Petition to Rehear.
The petition for certiorari was denied without filing the conference memo. used by the Court in considering the merits of the petition. See Butcher v. Mosby, 197 Tenn. 107, 270 S.W.2d 377. Mrs. Elrod has accordingly filed a petition to rehear, wherein it is stated that Mr. Elrod's reply brief falsely attributed to the Chancellor the following statements, to wit:
(1) "The evidence and record in this cause made out a case of cruel and inhuman treatment entitling the complainant to an absolute divorce, but for the two year residence Statute."
(2) "In his oral opinion, the Chancellor announced but for the two year residence Statute, the facts warranted a divorce on the ground of cruel and inhuman treatment."
The concern expressed by the petition to rehear is that these statements in Mr. Elrod's reply "could very well have been the determination upon which petition for certiorari was denied".
In disposing of the petition for certiorari, this Court proceeded on the assumption that the Chancellor had made no formal finding either way as to whether the proof of events which occurred in New York, together with those which occurred in Tennessee, justified a divorce, except for the jurisdictional fact. The foregoing statements attributed to Mr. Elrod's reply brief played no part in the denial of the petition.
The Court of Appeals did conclude as a fact, taking the New York evidence into consideration, that "the clear preponderance of the evidence would have warranted" the granting of a divorce to Mr. Elrod, except for the jurisdictional fact.
The other ground assigned by the petition as justification for a rehearing is that "the opinion of the Court of Appeals may be clarified". The petition makes no specification as to what its authors think should be clarified. This ground of the petition cannot, therefore, be further considered.
The petition to rehear will be denied.