Beatty v. Schenck

• Decision Date: 18 January 1913
• Parties: BEATTY v. SCHENCK et al.
• Court: Tennessee Supreme Court

152 S.W. 1033

127 Tenn. 63

BEATTY v. SCHENCK et al.

Supreme Court of Tennessee.

January 18, 1913

Appeal from Chancery Court, Fentress County; W. W. Draper, Special Chancellor.

Ejectment by C. E. Beatty against C. R. Schenck and others. From judgment for defendants, complainant appeals. Affirmed, and bill dismissed.

Smith & Smith, of Jamestown, for appellant.

Conatser & Case, of Jamestown, for appellees.

GREEN J.

This is an ejectment suit, decided in favor of the defendants below and appealed by complainant to this court.

The chancellor was of opinion that defendants had the better legal title, and was also of opinion that complainant's suit was barred by the statute of limitations; he finding that defendant had had seven years continuous adverse possession of the land in question.

Prior to the hearing of this case, the defendants gave notice in accordance with a rule of court that they would demand a jury to try the issues raised by the pleadings herein. When the case came on for trial, it appears from the decree that "the demand heretofore made for a jury to try the cause is waived, and, the cause coming on to be heard upon the bill, answer pro confesso, depositions on file, oral testimony," etc., it was ordered, adjudged, etc.

Much proof was offered by both sides under the plea of the statute of limitations as to the continuity of defendants' possession. Much of this testimony was oral and in open court, the witnesses being examined in the presence of the chancellor, and, as said before, the chancellor found the issues raised by this plea in favor of defendants.

In a case so tried, where the testimony is conflicting, we are loath to disturb the finding of the chancellor, when he had the witnesses before him, saw them, and heard them testify.

Section 6272 of Shannon's Code, founded on chapter 31 of the Acts of 1819, provides: "In all causes in chancery except divorce causes [and jury trials], the testimony of witnesses shall be taken in writing without compelling their personal attendance. In divorce cases [and jury trials] either party may examine the witnesses in open court, or take their proof by deposition as in other cases."

In Hardin v. Stanley, 3 Yerg. 381, it was held to be error to examine a witness in a chancery cause in open court since the passage of the above act; and it was held that for such procedure a case would be reversed if objection was made.

Such procedure is irregular, can only be followed by consent, and a trial so had is not according to the forms of the chancery court. The parties are not, therefore, entitled on appeal to have a re-examination of the whole matter of law and fact under the provisions of Shannon's Code, 4887.

In cases in chancery, where a jury is demanded, and subsequently waived by the parties, with an agreement that the chancellor shall sit as a jury, his findings are always given the force of a jury's verdict. Toomey v. Atyoe, 95 Tenn 373, 32 S.W. 254.

In that case, in discussing the force and effect of the chancellor's finding under such circumstances, this court said such force and effect was the result "as a matter of...