Brewer v. Brewer

• Decision Date: 14 January 1933
• Citation: 84 S.W.2d 1022
• Parties: BREWER et al. v. BREWER et al.
• Court: Tennessee Supreme Court

Page 1022

84 S.W.2d 1022

BREWER et al. v. BREWER et al.

Court of Appeals of Tennessee, Middle Section.¹

January 14, 1933.

Certiorari Denied by Supreme Court May 20, 1933.

Rehearing by Supreme Court Denied June 24, 1933.

Appeal from Chancery Court, Wayne County; J. C. Hobbs, Chancellor.

Suit instituted on bill of Gladys Brewer against the United States Fidelity & Guaranty Company and James H. Brewer, individually, and as the guardian de facto and trustee of John Walker Brewer, wherein J. M. Nixon, Regional Attorney, United States Veterans' Bureau, intervened, wherein C. L. Norman was appointed guardian of John Walker Brewer and became a party complainant, and wherein D. D. Humphreys, Jr., was appointed guardian ad litem and filed a cross-bill. From the decree, Gladys Brewer, as next friend of John Walker Brewer, and C. L. Norman, guardian of John Walker Brewer, and the United States Fidelity & Guaranty Company appeal.

Decree reversed and bill dismissed, without prejudice.

Haggard & Haggard, of Waynesboro, for appellant United States Fidelity & Guaranty Co.

C. L. Boyd, of Waynesboro, for appellees Gladys Brewer and C. L. Norman, Guardian.

FAW, Presiding Judge.

The labor of the court in acquiring an understanding of this record of more than 300 pages has been greatly increased by the failure of the clerk to observe the rule of this court which provides that "clerks shall make out transcripts so that process, pleadings, rules, orders, decrees, judgments, and steps of whatever kind, shall be entered in the order of sequence as they occurred in the progress of the cause." (See Appendix to 155 Tenn., or Appendix to either of the Tennessee Appeals Reports, vols. 1 to 11, inclusive.)

The original bill in this case was filed on August 16, 1930, by Gladys Brewer, a citizen and resident of Wayne county, Tenn., who states in the caption of her bill that she "brings this suit for her own use as the wife of John Walker Brewer, and also as next friend of the said John Walker Brewer, who is also a citizen and resident of Wayne County, Tennessee, but who is now confined in the Marion National Sanatorium, at Marion, Indiana."

The defendants to the original bill are described in the caption thereof as follows:

"James H. Brewer, individually, and as the Guardian de facto and Trustee, of John Walker Brewer; Carrie E. Brewer; S. M. Brewer; F. B. Hurst; E. L. Clayton; W. T. Harlow; John Daniel; citizens and residents of Wayne County, Tennessee; J. F. Castell, a citizen and resident of the State of Arkansas; Lon W. Brewer, a citizen and resident of Lawrence County, Tennessee; Alf Stutts, a citizen and resident of Chester County Tennessee; A. C. Brewer, a citizen and resident of Davidson County, Tennessee; the United States Fidelity and Guaranty Company, a Corporation organized under the laws of the State of Maryland, but authorized to do a general surety business in the State of Tennessee; J. B. Garner, and Pride Tomlinson, citizens and residents of Maury County, Tennessee; and John Walker Brewer, a citizen and resident of Wayne County, Tennessee, but at present confined in the Marion National Sanatorium, at Marion, Indiana, as a person of unsound mind."

The decree brought up for review by the appeal in this case was predicated upon the pleadings and exhibits thereto, and, as the pleadings present a very unusual state of facts, we think it necessary to an understanding of the questions for decision here (which are, in some of their aspects, quite novel) that we quote a considerable part of the original bill, as follows:

"Your complainant would respectfully show to the court:

"I. That she is the lawful wife of John Walker Brewer, that they were married in Giles County, Tennessee, on the 24th day of September, 1925, and has all her life resided in Wayne County, Tennessee. A certified copy of the marriage license, showing the return of the officer performing the ceremony, will be filed as `Exhibit No. 1' to this bill on or before the hearing if necessary, but the same need not be copied, unless demanded by defendants.

"II. That John Walker Brewer is also a citizen and resident of Wayne County, Tennessee, but has been confined continuously in the Marion National Sanatorium, at Marion, Indiana, for treatment under the direction of the United States Veterans' Bureau, since September 28th, 1925, to which place he was carried by his brother James H. Brewer, acting as Guardian of the said John Walker Brewer, as will hereinafter be more fully shown.

"III. That the defendant James H. Brewer is the brother of the said John Walker Brewer, and on or about August 22, 1922, went into the County Court of Wayne County, Tennessee, and attempted to have himself appointed guardian of the said John Walker Brewer. Letters of Guardianship were issued to the said James H. Brewer, as the Guardian of the said John Walker Brewer, and said Guardian executed his guardian's bond on August 23, 1922, in the penalty of Two Thousand ($2000.00) Dollars, with the defendants Carrie E. Brewer, S. M. Brewer, and J. F. Castell as his sureties on said Guardian's bond.

"That at the time of the alleged appointment of the said James H. Brewer, as the Guardian of the said John Walker Brewer, there was little or no property of the ward over which said guardian could exercise authority or reduce to his possession, but immediately thereafter, the said guardian received from the United States Government large sums of money on account of the disability of the said John Walker Brewer, and by reason of his service in the United States Army during the World War, and from time to time the said James H. Brewer, while acting as the Guardian of the said John Walker Brewer, received checks and vouchers on this account to the amount of more than Ten Thousand ($10,000.00) Dollars. From time to time the said James H. Brewer, acting as such Guardian, made what purports to be a statement of his account with his said ward with the County Court of Wayne County, Tennessee, and on August 25, 1924, renewed his bond as such Guardian in the penalty of Fifteen Thousand ($15,000.00) Dollars, with the defendants, Carrie E. Brewer, S. M. Brewer, J. F. Castell, Alf Stutts, A. C. Brewer, John Daniel, F. B. Hurst, E. L. Clayton, W. T. Harlow, and Lon W. Brewer as sureties on said Guardian bond; and again on January 26th, 1926, the said James H. Brewer, as the Guardian of John Walker Brewer, renewed his said Guardian's Bond in the sum of Twelve Thousand ($12,000.00) Dollars, with the defendant the United States Fidelity & Guaranty Company, as his surety, the name of said Company being signed upon said bond by F. B. Hurst their duly constituted Attorney-in-fact, and with the seal of said corporation affixed to said bond.

"That the names of said sureties upon the several bonds of the defendant James H. Brewer, as Guardian of John Walker Brewer, are as stated in the caption, and their several places of residence are stated upon information deemed reliable.

"Each of said bonds were accepted and approved by the County Judge of Wayne County, Tennessee, as will hereinafter more fully appear.

"IV. That on or about September 26th, 1925, and while your complainant and the said John Walker Brewer were residing in Wayne County, Tennessee, at the home of a relative of the said John Walker Brewer, as husband and wife, the defendant, James H. Brewer, brought a number of officers to the home they were then residing in and in the night time forcibly took her husband, the said John Walker Brewer, from her, and after holding him in the jail at Waynesboro for a day or two compelled him to go with him to Marion, Indiana, and there placed him in the Marion National Sanatorium, where ex-service men are confined and treated at the expense of the United States Government. And since said date of about September 28th, 1925, the said John Walker Brewer has been there confined, and not so much as returning to his home for a visit. All of which conduct on the part of the said James H. Brewer was against the will and over the protest of your complainant and the said John Walker Brewer. And complainant charges that such conduct was the first step in the scheme and design of the said James H. Brewer to harass, annoy, and embarass your complainant, and to prevent her from enjoying the association and companionship of her said husband, and maintenance and support from him, as will hereinafter be more fully shown from the course pursued by the said James H. Brewer upon his return from Marion, Indiana. As the Guardian of the said John Walker Brewer, James H. Brewer directed the authorities there to receive and detain him, and he is now, as complainant is informed and charges, restrained there under guard, as a person of unsound mind.

"V. That immediately upon his return from Marion, Indiana, and on September 28th, 1925, the said James H. Brewer, as the Guardian of her husband, John Walker Brewer, filed a bill in the Chancery Court at Waynesboro, Tennessee, in which bill, without the consent of or authority from the said John Walker Brewer, he named him as a party-complainant, against your complainant herein, and after numerous allegations which were wholly untrue, prayed that the marriage between your complainant and the said John Walker Brewer be declared void, ab initio, or annulled by the decree of this Court, and that your complainant `be enjoined from in any way interfering with said John Walker Brewer or his property or effects, in any manner whatever', and he prayed for general relief.

"That your complainant filed her answer to said bill, and the said John Walker Brewer, by and through his solicitors, J. B. Garner and Pride Tomlinson, was permitted to file his petition in the cause, in which he denied the right or authority of the said James H. Brewer to make him a party-complainant for the purposes stated in the bill, disclaiming any purpose or desire on his part to annul the marriage with complainant, and...