Bernard v. Walker

• Decision Date: 12 June 1948
• Parties: BERNARD v. WALKER et al.
• Court: Tennessee Supreme Court

212 S.W.2d 600

186 Tenn. 617

BERNARD v. WALKER et al.

Supreme Court of Tennessee.

June 12, 1948

Rehearing Denied July 17, 1948.

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by Park Bernard against James E. Walker, Jr., and others to reform a deed and other documents and to have a trust declared in his favor to the extent of 25% of a business owned and operated by the named defendant and his associates. To review a judgment of the Court of Appeals reversing a decree of the Chancery Court in favor of the complainant, the complainant brings certiorari.

Judgment affirmed.

Jennings, O'Neil & Jarvis, of Knoxville, for appellant.

Egerton McAfee & Armistead, of Knoxville, for appellees.

GAILOR Justice.

This appeal presents a family controversy over a one-fourth partnership interest in a tobacco business at Asheville North Carolina. By the original bill, Complainant, Park Bernard, seeks to reform a deed and certain other documents and have a trust declared in his favor to the extent of 25% of a business now owned and operated by the Defendant, James E. Walker, Jr., and his associates. Park Bernard is the son of the defendant, W. W. Bernard, the nephew of the defendant, John S. Bernard and the cousin of the defendant Walker. By an amendment of the original bill Bernard Warehouses, Inc., a Tennessee corporation, was made a party defendant. As the Corporation has its situs at Greeneville, it is referred to in the record as 'Bernards of Greeneville.' The majority stock in this corporation is owned by various members of the Bernard family, and the defendant W. W. Bernard as President, signed pleas for the corporation.

The defendants John S. Bernard and the Walkers filed demurrers to the original bill and when these demurrers were overruled filed answers. The defendant W. W. Bernard, individually, and as President of Bernard Warehouses, Inc., did not demur but filed separate answers for himself and the corporation, and by these answers, admitted the essential allegations of the bill, and further admitted that Complainant was entitled to a decree as prayed. At the outset, it is to be stated that the record affords abundant, and we think, conclusive evidence that the bill was filed by the son in friendly agreement with the father, and that though the father was made a nominal defendant, his interests were not antagonistic to those of the son, but on the contrary, if by the litigation the son succeeded in securing a one-fourth interest in the property involved, the father might well secure an identical share in similar litigation on his own behalf. That there was this agreement between father and son is clear from this statement in the original bill: 'Complainant brings this bill on his own behalf and on behalf of any other interested party, including the defendant, W. W. Bernard, to the end that they may come in and assert their rights, titles and interests in and to said property and the earnings of said business.'

And the following excerpt from the father's answer: 'At this time, the answers of the other defendants have not been filed, and your defendant, after said answers are filed, may find it necessary to file a cross-bill himself and seek affirmative relief. Should such necessity arise, he now reserves to himself the right to file such cross-bill.' The conclusion is fortified by the father's subsequent failure and refusal to testify against his son's interests, although principal facts of the controversy were known to the father and determinative issues arose from his decisions and conversations.

After the defendants had answered, and certain minority stockholders of Bernards Warehouses, Inc., had successfully intervened on the ground that W. W. Bernard, though President of the corporation, was not in fact defending the action or raising defenses available to the corporation, the case was tried before a jury in the Chancery Court. At the close of Complainant's evidence, which consisted of his own testimony and that of an accountant, and again at the close of all the evidence, the defendants moved that the issues be withdrawn from the jury and the bill be dismissed. The Chancellor overruled these motions, exceptions were preserved, and thereafter there was a verdict and a decree for the Complainant.

On appeal to the Court of Appeals, that Court held that the Chancellor was in error in submitting issues to the jury, that the motions to withdraw the issues should have been granted and dismissed the bill. The Court of Appeals further overruled a motion of the Complainant to dismiss the bill of exceptions.

The Complainant filed petition for certiorari, which we granted, we have heard argument and the case is now before us for disposition.

Three of the assignments of error assail the action of the Court of Appeals in overruling a motion of petitioner to strike the bill of exceptions and affirm the decree. The facts upon which the motion is predicated are these. The jury returned a verdict against the defendants on August 17, 1946. The several defendants filed motions for new trial between August 24 and August 29, 1946. According to a photostat of the Chancery motion docket, on September 13th motions for new trial had been filed and opposite the motions in the column headed 'Action,' there appears this entry, 'heard, denied and appeal allowed.' There is no signature of the entry and the statement is made in briefs that the entry was made by the Clerk and Master, but since it was unsigned it is immaterial who made it. The term of the Chancery Court at which this case was tried ended on November 2, and a new term commenced on November 4, 1946. On October 31, 1946, and before expiration of the trial term, the following order was signed by the Chancellor and entered on the minutes: 'In this cause it appearing to the Court that motions for new trials have been seasonably filed by defendants (naming them), and that the present term of this Court will expire before the Court has acted upon said motions, it is therefore ordered, adjudged and decreed that the aforesaid motions for new trials and all other matters to be adjudicated in this cause be, and the same are, hereby continued to the next term of this court, which begins on Monday, November 4, 1946.'

On January 7, 1947, and within the November term, a 'final decree' was entered on the minutes and commences with the following recital:

'This cause came on for final hearing before the Honorable A. E. Mitchell, Chancellor, on Friday, September 13, 1946, upon the motion of the defendants to set aside the findings of the Jury, and to grant them a new trial on the issues of fact submitted to the Jury, which motion on due consideration thereof, is by the Court overruled.

'And, thereupon, the cause coming on to be further and finally heard on said day * * *'

On this, petitioner argues at length that since the motion docket shows that the recital of the first paragraph of the January 7th decree was true, that therefore, the decree of October 31, 1946, was ineffectual to extend the term. We think it immaterial whether as defendants insist, the insertion of 'September 13, 1946' was a typographical error, the recital did not determine the effective date of the decree which was the date of its entry on the minutes, January 7, 1947. The oral announcement of the Chancellor and the memorandum of it entered on the motion docket was not action of the Court, which can only be by entry on the minutes and signature of the Chancellor. 'While in this case the chancellor had announced the decree, still none had been entered and signed. It was still in the breast of the court, and there was nothing of binding force in any sense upon the chancellor or the parties. If the chancellor had died or resigned before the enrollment of a decree, the case would have remained on the docket for trial. The law recognizes nothing as an order or decree until it is upon the minutes of the court.' Fraker v. Brazelton, 80 Tenn. 278, 280, 281.

This rule as stated in Fraker v. Brazelton, supra, has been approved in all of our more recent cases. Citizens' Bank & Trust Co. v. Bayles, 153 Tenn. 40, 50, 281 S.W. 932; Wilkinson v. Johnson City Shale Brick Corporation, 156 Tenn., 373, 378, 299 S.W. 1056, 2 S.W.2d 89; Mullen v. State, 164 Tenn. 523, 529, 51 S.W.2d 497; Jackson v. Jarratt, 165 Tenn. 76, 81, 52 S.W.2d 137.

Since, therefore, the language of the decree of October 31, 1946, 'that the present term will expire before the court has acted upon said motions,' was not contradicted by any other language in the minutes of the Court, the recital imports absolute verity, and the case stood as if at the end of the May term, the Chancellor had the motions for new trial under advisement.

In a supplemental brief filed after the case was argued before us, counsel for the motion makes this statement: 'We again call the Court's attention to the fact that this order in its recitation 'that the present term of this court will expire before the Court has acted upon said motions (referring to the motions for new trials) is in the teeth of the admitted fact that said motions were overruled by the Court on September 14, 1946, * * *.'

Apparently, counsel in his zeal, is unwilling to recognize the difference which here exists, between 'admitted fact' and 'admitted law.' Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445.

The motions for new trial being 'still in the breast of the court' (Fraker v. Brazelton, supra), the order of October 31, was fully effective to carry the case over to the new term, and to preserve rights of the defendants to file a bill of exceptions within 60 days after January 7, 1947, when the final decree was entered. That final decree so provided and the...