Broch v. Broch

• Decision Date: 16 March 1932
• Parties: BROCH v. BROCH.
• Court: Tennessee Supreme Court

47 S.W.2d 84

164 Tenn. 219

BROCH v. BROCH.

Supreme Court of Tennessee.

March 16, 1932

Certiorari to Court of Civil Appeals.

Suit by Dorothy L. Broch against Augustus A. Broch. A decree for complainant was reversed and the suit dismissed by the Court of Appeals, and complainant brings certiorari.

Decree of the Court of Appeals affirmed.

McDonald & McDonald, and Robert W. Hall, all of Memphis, for plaintiff in error.

A. A Kincannon, of Memphis, for defendant in error.

CHAMBLISS J.

A decree of divorce was granted Mrs. Broch by the circuit judge and she was given the custody of a six year old girl child. The Court of Appeals has reversed the case on the facts and dismissed the suit. By her petition for certiorari, which has been granted and argument heard, the preliminary question is made that the Court of Appeals erred: (1) In considering the evidence at all because no motion for a new trial was made in the trial court; and (2) in hearing the case de novo, in disregard of the material evidence rule.

It appears that in his answer, filed December 21, 1929, the defendant demanded a jury to try the cause; but that on May 15, 1930, the following minute entry was made:

"Comes the defendant by and through his attorney *** and waives the jury heretofore demanded in this case. It is therefore ordered by the Court and the clerk of the Court is hereby directed to place this case on the nonjury calendar."

The bill of exceptions recites that "the cause was called for trial and was tried, on the 23rd day of June, 1930 before the Hon. B. L. Capell, Judge," etc., "when and where the following proceedings were had, to wit," etc. Here follows a recital of the testimony.

The decree recites that "this cause came on to be heard before the Hon. Ben L. Capell, Judge," etc., "upon the bill of the complainant, Dorothy Love Broch, and the answer of the defendant, Augustus A. Broch, and the affidavits on file, and the oral testimony of witnesses examined in open Court, viz: The Complainant," etc. No motion for a new trial was made. Appeal was prayed and granted to the Court of Appeals.

Touching this question of procedure that court said:

"It is insisted that by virtue of chapter 94 of the Public Acts of 1929, the appellant is precluded from being heard on this appeal, because he failed to file a motion for a new trial. Divorce cases are heard according to Chancery Procedure, and are tried de novo in this Court. We are of the opinion that a motion for a new trial was not necessary."

It is quite properly conceded for petitioner here that the general rule is that "divorce cases are heard according to Chancery Procedure, and are tried de novo in" the Court of Appeals. And that in such cases generally no motion for a new trial is necessary. And it is conceded, further, that this is true whether the trial is had in the chancery or the circuit court. However, it is insisted that this rule has application only where the trial is had according to the forms of chancery procedure, and that when the case is heard either by a jury (in whichever court), or by the chancellor, or the judge, after a jury has been demanded and thereafter waived, this rule no longer applies, but that, then, as in law cases, (1) a motion must be made for a new trial, and (2) the appellate court will affirm the judgment if there is material evidence to sustain it.

In Francis v. Francis, 3 Higgins, 469, Mr. Justice Hughes, in a very clear opinion, shows that divorce proceedings are in their essential nature and to all intent and purposes chancery proceedings, whether brought in the chancery or circuit court; also, that under Shannon's Code, § 4887 (Code 1932, § 9036), an appeal in a divorce proceeding tried before the circuit judge without a jury is an appeal in its technical sense, not an appeal in the nature of a writ of error, and is tried de novo in the appellate court. However, on page 473 of 3 Higgins, the learned judge refers to section 4888 of the Code (Code 1932, § 9037) and suggests that if the case had been tried before a jury in either court a different rule would have been applied.

Since Richmond v. Richmond, 10 Yerg. 343, opinion by Mr. Justice Green, it has been settled in this state that: (1) Divorce cases, whether heard by a circuit judge or a chancellor, are in the nature of chancery suits, the procedure being according to the courts of chancery; and that (2) when a divorce case is tried before a jury it is not heard on appeal de novo but reviewed and "determined upon the same principles that are applicable to trials at law." The question on appeal is whether or not there is material evidence to sustain the verdict. It results that in divorce cases, as in all other cases, tried before a jury, a motion for a new trial must be made as a condition of review on appeal.

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