Brown v. Brown

• Decision Date: 15 July 1927
• Citation: 296 S.W. 356,155 Tenn. 530
• Parties: BROWN v. BROWN ET AL.
• Court: Tennessee Supreme Court

296 S.W. 356

155 Tenn. 530

BROWN v. BROWN ET AL.

Supreme Court of Tennessee.

July 15, 1927

Certiorari to Court of Appeals.

Suit for divorce by Martha Rowland Brown against John C. Brown, in which M. H. Long was appointed receiver. The Court of Appeals on appeal by all parties reversed the decree of the chancellor, and the complainant and the receiver bring certiorari. Decree of the Court of Appeals reversed, and that of the chancellor modified, and as modified affirmed.

SWIGGART J.

Petitions for writs of certiorari to the Court of Appeals were filed in this cause by M. H. Long, receiver, and by the original complainant, Martha Rowland Brown. Both petitions were heretofore granted, and oral argument by counsel for all parties has been heard.

The appeal to the Court of Appeals was from the decree of the chancery court of Giles county fixing the amount of compensation due to M. H. Long, as receiver, and certain expenses incurred by him, and adjudging the amount of compensation and certain items of expense against the complainant, Martha Rowland Brown, and a single item of expense, consisting of storage charges upon certain furniture and household goods, against the defendant John C. Brown.

All parties appealed to the Court of Appeals.

The original bill was filed for a decree of divorce averring that the final separation of the complainant and defendant took place in Giles county, and that both parties were residing in that county at the time of the separation.

The statute fixing the venue for actions for divorce (section 2451 of the Code of 1858; Shannon's Code [all editions] § 4204), is as follows:

"The bill may be filed in the proper person and name of the complainant, in the circuit or chancery court of the county or district where the parties resided at the time of their separation, or in which the defendant resides, or is found if a resident; but, if a nonresident or convict, then in the county where the applicant resides."

The defendant interposed a special plea to complainant's bill asserting that he had not been a resident of Giles county since his marriage to complainant, and that neither he nor the complainant resided in said county at the time of their separation, but were residents of Davidson county, where defendant had resided continuously for more than 30 years.

Issue was joined on this plea, and, upon the hearing, the chancellor found against the plea. The case was then carried to the Court of Civil Appeals, and thence to this court, in which a decree was rendered sustaining the plea of the defendant. The cause was remanded to the chancery court of Giles county, with the direction that the property taken from defendant's possession be restored to him, and that complainant's suit be dismissed. The opinion of this court on the original appeal is reported under the style of Brown v. Brown, 150 Tenn. 89, 261 S.W. 959.

Complainant's bill prayed for writs of injunction and attachment, supported by averments that, unless defendant should be restrained and his property impounded, he would make way with same and so defeat complainant's claim for alimony.

The bill also prayed that a receiver be appointed to take charge of the defendant's property attached, if necessary; and, at the time the bill was presented to the chancellor for writs of injunction and attachment, application was also made for the appointment of a receiver, pursuant to which the chancellor appointed the petitioner, M. H. Long, the clerk and master, as receiver. The receiver proceeded at once to locate and take possession of all personal property of the defendant which he could find, and no application to discharge the receiver was at any time made by the defendant.

Responding to assignments of error made in that court by both complainant and defendant, the Court of Appeals construed the holding of this court on the original appeal (150 Tenn. 89, 261 S.W. 959) as determining that the chancery court of Giles county was without jurisdiction of the subject-matter of this suit. From this premise the Court of Appeals concluded that upon the dismissal of the suit the chancery court had no power to adjudge costs against either party, except in so far as such power was conferred upon the court by section 3215 of the Code of 1858 (Shannon's Code, § 4957), which is as follows:

"Where a suit is dismissed from any court for want of jurisdiction, or because it has not been regularly transferred from an inferior to a superior court, the costs shall be adjudged against the party attempting to institute or bring up the cause."

The Court of Appeals construed the statute just quoted as authorizing only the taxation of the ordinary and usual items of costs, and that the compensation and expenses of a receivership are not included within the term "costs" as used in this statute.

Having reached this conclusion, the Court of Appeals pretermitted all other questions, and reversed the decree of the chancellor.

In the view we take of the case, we do not find it necessary to determine whether the Court of Appeals was correct in the construction of the term "costs" as used in the statute referred to. Section 3215 of the Code of 1858.

The jurisdiction of a court to act on the merits of a particular case includes both jurisdiction of the subject-matter and jurisdiction of the parties or persons affected by the judgment rendered. The two elements of jurisdiction are not only distinct, but, so far as the particular case is concerned, are of different origin. Thus:

"The elements of this jurisdiction are twofold: First, of the subject-matter adjudged; and second, of the parties whose rights are affected by such judgment or decree. The former of these the court acquires by the act of its creation, and possesses inherently by its Constitution; the latter it acquires by its own acts through the medium of its process and its officers." 12 Encyc. Pl. & Pr. 121.

In 12 Encyclopædia of Pleading and Practice, p. 118, the free use of the word "jurisdiction" in its several aspects is referred to as follows:

"It has been said that there is perhaps no word in legal terminology so frequently used as the word 'jurisdiction,' so capable of use in a general and vague sense, and which is used so often, by men learned in the law, without a due regard to precision in its application."

This distinction was pointed out by this court in the recent case of Chambers v. Sanford & Treadway, decided November 20, 1926, and reported in 289 S.W. 533, as follows:

"(3) The distinction between jurisdiction over the subject-matter and jurisdiction of the person was not recognized in Harr v. Booher [146 Tenn. 694, 244 S.W. 493] supra. 'Jurisdiction of the subject-matter' relates to the right of the court to adjudicate or to make an award through the remedies provided by law upon facts proved, or admitted, in favor of or against persons who present them or who are brought before the court under sanction of law. Jurisdiction of the subject-matter is not waived by appearance and may be taken advantage of at any stage of the proceeding, for in such cases the judgment would be coram non judice. Harmon v. Tyler, 112 Tenn. 8, 83 S.W. 1041; Board of Directors v. Bodkin Bros., 108 Tenn. 713, 69 S.W. 270; Baker v. Mitchell, 105 Tenn. 610, 59 S.W. 137; In re Lumber & Mfg. Co., 141 Tenn. 329, 210 S.W. 639.

(4) 'Jurisdiction of the person,' that is where the court is called upon to act upon the person, and where the process may run to any county in the state, is regarded as formal or modal, and the right to object to the locality of trial is a personal privilege which the party may waive and thereby confer jurisdiction. Agee v. Dement, 1 Humph. 332; Glass v. Stovall, 10 Humph. 453; Bank v. Foster, 90 Tenn. 735, 18 S.W. 267."

In the opinion of this court in Brown v. Brown, 150 Tenn. 89, 261 S.W. 959, the plea interposed by the defendant was referred to as "a plea to the jurisdiction of the court," but the court stated the substance of the plea as being that the defendant was not a resident of Giles county, but was a resident of Davidson county both at the time of the separation and at the time the bill was filed.

After finding that the averments of the plea were sustained by the proof, the court stated its conclusion simply as that "the complainant should have filed her suit at Nashville instead of Pulaski." There is no statement in the opinion that the chancery court of Giles county did not have jurisdiction of the subject-matter of the suit.

The authorities holding that a court has no power to adjudge the costs, or even make an order of restoration upon the dismissal of a suit for want of jurisdiction, are all limited to cases in which there is a lack of jurisdiction of the subject-matter. If a court has jurisdiction of the subject-matter of a suit, it has power to adjudge the costs, and it is not necessary therein to invoke the provisions of the statute. Section 3215 of the Code of 1858 (Acts of 1917, c. 107).

The statute fixing the venue of actions for divorce cannot be construed as making such actions local, as distinguished from transitory actions. The characteristic feature of a transitory action is that "the right of action follows the person of the defendant." Code (S.), § 4513 (Code of 1858, § 2808). And the statute expressly authorizes an action for divorce in the county where the defendant is found. That it is not a local action is further made clear by the discussion in Burger v. Parker et al. (Tenn.) 290 S.W. 22.

The question for determination is, therefore, whether a statute limiting the venue of actions transitory in their nature to certain counties of the state operates to deprive or divest the courts of other counties of jurisdiction of the...