TERESA G. BRADFORD,                     )
                                        )
      Plaintiff/Appellee,               )
                                        )    Montgomery Chancery
                                        )    No. 92-71-434
VS.                                     )
                                        )    Appeal No.
                                        )    01-A-01-9603-CH-00121
DONNIE R. BRADFORD,                     )
                                        )
      Defendant/Appellant.              )
                                                                   FILED
                    IN THE COURT OF APPEALS OF TENNESSEE             June 7, 1996

                            MIDDLE SECTION AT NASHVILLE         Cecil W. Crowson
                                                               Appellate Court Clerk

      APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY

                             AT CLARKSVILLE, TENNESSEE


                 HONORABLE ALEX W. DARNELL, CHANCELLOR




CLEO GREER HOGAN
107 North Third Street
Clarksville, Tennessee 37041
ATTORNEY FOR PLAINTIFF/APPELLEE




THOMAS R. MEEKS
137 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANT/APPELLANT



MOTION OF THE APPELLANT IS OVERRULED.



                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
TERESA G. BRADFORD,                            )
                                               )
       Plaintiff/Appellee,                     )
                                               )      Montgomery Chancery
                                               )      No. 92-71-434
VS.                                            )
                                               )      Appeal No.
                                               )      01-A-01-9603-CH-00121
DONNIE R. BRADFORD,                            )
                                               )
       Defendant/Appellant.                    )

                                         OPINION


       On May 16, 1996, appellant moved this Court to rule that this cause is properly before

this Court.



       It appears that, on June 9, 1995, this Court dismissed a previous appeal from a

judgment that did not dispose of all issues pending before the Trial Court.



       On March 18, 1996, appellant filed in this Court, the following motion:

                 Comes now, Donnie R. Bradford, pursuant to Rule 22 of the
               Tennessee Rules of Appellate Procedure and respectfully
               petitions this court for an order which would allow the
               appellant, Donnie R. Bradford to proceed with his appeal from
               a judgment of the Chancery Court of Montgomery County,
               Tennessee. The movant would show that he filed a notice of
               appeal and the court ruled that said notice of appeal was
               premature due to a lack of a final order addressing the issue of
               back child support. The movant would show subsequent to this
               court’s decision, the parties entered an order which stated that
               there was no back child support due at the time of the initial
               appeal by the appellant. (See exhibit one). The positions of the
               appellant and the appellee are the same as they were on the
               24th day of May, 1995. The appellant requests that his notice
               of appeal be treated as [if it had] been filed subsequent to the
               parties’ agreed order as evidenced by Exhibit One of this
               motion. The appellant avers that Rule 4 of the Tennessee
               Rules of Appellate Procedure allows a premature notice of
               appeal to be treated as filed after the entry of the judgment
               from which the appeal is taken. The movant respectfully prays
               that this court issue an order requiring the Clerk and Master to
               transfer the record of the trial court proceedings to this court so
               that a proper review of the trial court’s decision can be made.
               (See exhibit two).




                                              -2-
       Exhibit One to said motion is an agreed order entered on February 1, 1996, reading as

follows:

               This cause came on to be heard December 22, 1995 upon the
              Motion filed June 26, 1995 of the defendant to declare there
              was no back support due and upon the Notice of Withdrawal of
              Petition for Contempt filed in this cause on September 20,
              1995 pertaining to a Petition for Contempt filed on May 11,
              1993 and upon the Notice of Withdrawal of the Petition for
              Contempt filed on September 20, 1995 pertaining to a Petition
              for Contempt filed on May 20, 1994 by the plaintiff and upon
              the record as a whole and on the representation of counsel for
              the parties.

               The court finds that the parties are in agreement that the Final
              Decree of Absolute Divorce filed in this cause on June 15,
              1994 was entered with consideration for the respective
              Petitions for Contempt and that defendant’s motion to declare
              there was no back child support owed at the time of entry of the
              Final Decree is well taken, and should be granted.

               Wherefore, premises considered; it is hereby ordered,
              adjudged and decreed that the Final Decree of Absolute
              Divorce in this cause contained consideration of the respective
              Petitions for Contempt that have now been withdrawn by the
              plaintiff and there was not at the time of the entry of the Final
              Decree on June 15, 1994 any issue of Contempt in this cause
              and that defendant’s Motion for the Court to find that all child
              support arrearages had been resolved by the Final Decree is
              granted.


       Also attached to said motion is the following affidavit:

               I, Thomas R. Meeks, hereby state and aver that I have been
              the attorney of record for Donnie R. Bradford from the
              inception of the divorce proceedings filed in Montgomery
              County Chancery Court, Docket Number 92-71-434. On May
              24th, 1995 the Court of Appeals determined that the appeal that
              the appellant had perfected in case number 01-A-01-9505-CH-
              00207 should be dismissed on the basis that an issue of back
              child support had not been resolved by the trial court. Both
              attorneys of record, Cleo Hogan, attorney for appellee, and
              myself recognized that the issue of back child support was non
              existent and not a viable issue which either party sought the
              Court of Appeals to address. An agreed order acknowledging
              that back child support was not an issue and that all child
              support arrearage had been resolved by the final decree which
              the appellant sought to appeal in case number 01-A-01-9505-
              CH-00207. The respective parties’ positions are the same prior
              the entry of the Court of Appeals order to dismiss, Donnie R.
              Bradford’s appeal as it stands today. (See March 11th, 1996
              letter from Cleo Hogan). Neither parties’ positions have been
              changed, altered, or modified by the entry of the agreed order in
              the Chancery Court for Montgomery County, Tennessee on


                                             -3-
               February 1, 1996. The appellant did not file a notice of appeal
               after entry of the February 1, 1996 Chancery Court order. It is
               the affiant’s belief that relief under Rule 2 and Rule 4 of the
               Tennessee Rules of Appellate Procedure allows this court to
               utilize the notice of appeal filed in 01-A-01-9505-CH-00207,
               and allow the appellant to proceed with his appeal without
               filing another notice of appeal after the entry of the agreed
               order filed by the parties in the Chancery Court of Montgomery
               County, Tennessee.


       On March 29, 1996, this Court entered the following order:

                 On May 24, 1995, this court dismissed the appellant’s appeal
               for lack of a final order. The trial court apparently entered a
               final order on February 1, 1996 but the appellant failed to file a
               new notice of appeal within the time permitted by Tenn. R.
               App. P. 4. The appellant has now filed a motion requesting an
               order allowing his appeal to proceed based on his original
               notice of appeal. The appellant’s request addresses itself in the
               first instance to the trial court. This court declines to rule upon
               the appellant’s right to appeal unless and until the trial court
               has ruled on the issue.

                It is, therefore, ordered that the appellant’s motion be
               overruled.


       On May 16, 1996, the appellant filed in this court the first mentioned motion reading

as follows:

                Comes the movant, Donnie Ray Bradford, by and through his
               attorney, Thomas R. Meeks, and respectfully requests the Court
               to rule that this case is properly before the Court and there are
               no issues left for the trial court to review or try. This matter is
               accepted by the Court of Appeals for proper review. The
               movant further requests that any failure on the part of Donnie
               Ray Bradford to file a new notice of appeal is excused pursuant
               to Rule 2 of the Tennessee Rules of Appellate Procedure.


       T.R.A.P. Rule 4(d) reads as follows:

               (d) Premature Filing of Notice of Appeal - A prematurely
               filed notice of appeal shall be treated as filed after the entry of
               the judgment from which the appeal is taken and on the day
               thereof.


       As explained in the Committee Comment, the quoted provision was for the limited

purpose of preserving the validity of a notice of appeal filed after entry of final judgment but

before the disposition of post-judgment motions such as motions to alter or amend.      It was



                                               -4-
not intended to validate notices of appeal filed, for example, with the complaint. Nor was it

intended to preserve the effectiveness of a notice of appeal from a non-final judgment when

that appeal is dismissed by the appellate court for lack of a final judgment.



       When the previous appeal was dismissed, the appellant had the opportunity of petition

to rehear and/or application for permission to appeal to the Supreme Court. Upon the

expiration of the time for same or the exhaustion of such remedies, the judgment of this

Court was final, and not subject to revision by this Court.



       The agreed order of February 1, 1996, if it completed the disposition of all issues

before the Trial Court, constituted a final judgment from which a new appeal on all issues

was available by timely notice of appeal which, apparently, was not filed.



       The motions of March 18, 1996, and May 16, 1996, are an effort to rely upon the

original notice of appeal from the non-final judgment. By Rule 4(d), said notice was deemed

to have been filed on the date of entry of the judgment “from which (the appeal) was taken.”

Undoubtedly, the judgment named in the notice was the non-final judgment. It has served its

purpose by causing a record to be transmitted to this Court. Having served its purpose, it

became “functus officio” (a task performed). Black’s Law Dictionary, Fourth Edition, p.802,

and useless for any further purpose. City Finance Co. v. Harris, 60 Tenn. App. 188, 445

S.W.2d 467 (1968); State v. Stafford, 183 Tenn. 186, 191 S.W.2d 442 (1946).



       The motions seek relief under T.R.A.P. Rule 2, but said rule specifically denies to this

Court the power to waive the timeliness of a notice of appeal.



       The motion of the appellant is overruled, and appellant is taxed with accrued cost for

which execution may issue.




                                              -5-
     MOTION OF THE APPELLANT IS OVERRULED.



                                   _______________________________________
                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE



_____________________________________
BEN H. CANTRELL, JUDGE




                                    -6-
