Byrd v. Wright

• Decision Date: 05 February 1944
• Parties: BYRD v. WRIGHT.
• Court: Tennessee Supreme Court

177 S.W.2d 820

180 Tenn. 627

BYRD v. WRIGHT.

Supreme Court of Tennessee.

February 5, 1944

Rehearing Denied April 14, 1944.

Appeal from Chancery Court, Scott County; J. H. Wallace, Chancellor.

Suit by Roscoe Byrd against C. W. Wright for a determination that complainant, rather than defendant, was elected a county judge in Scott county. Decree for complainant, and defendant appeals.

Affirmed.

Appeal from decree of chancellor sitting as a special tribunal in an election contest is governed by statute declaring that appeal from decree in such proceedings shall be governed as appeals from chancery court are governed. Code 1932, § 2129.

John Jennings, Jr., of Knoxville, and Wm. York, of Huntsville, for complainant.

Harold Wimberly and S. F. Fowler, both of Knoxville, for defendant.

GAILOR Justice.

This appeal involves a contest of the election for County Judge in Scott County on August 6, 1942. Under the provisions of section 2116 of the Code, the bill was filed by Roscoe Byrd before the Honorable J. H. Wallace, Chancellor of the Second Chancery Division against the defendant, C. W. Wright for the purpose of asserting that complainant was lawfully elected to the office of County Judge in the General Election of 1942, and challenging the claim of the defendant that he was elected to said office on the face of the returns. Under the aforesaid provision of the Code the Chancellor sat as a Special Tribunal, decreed that the case would be heard on oral testimony, and after purging the returns of certain illegal votes cast for the defendant, decreed that complainant had been legally and duly elected County Judge of Scott County in the General Election of August 1942. From this decree defendant prayed, was granted, and has perfected his appeal to this court.

It is necessary first to dispose of an elaborate motion made by the complainant to strike the Bill of Exceptions and affirm the decree of the Chancellor.

It is insisted that since the Chancellor sat as a Special Tribunal and there is no statutory provision therefor, that he had no authority to sign the Bill of Exceptions; that because the Chancellor, as such Special Tribunal, made a rule that the cause should be heard on oral testimony, that a motion for new trial is necessary; that no motion for a new trial was made, and that therefore the decree of the Chancellor, which contains the findings of fact, must be affirmed.

In effect, the motion is predicated upon a statement in the opinion of Barham v. Denison, 159 Tenn. 226, 239, 17 S.W.2d 692, 696:

'No means is provided by statute for preserving the record by bill of exceptions in contested election cases which are heard before the chancellor who sits as a special tribunal and not as a court. The jurisdiction of the chancellor was limited to the trial of the particular case, and when the contest was determined and the result was announced, the tribunal constituted by statute to decide the questions involved became functus officio. No inherent power lay in the chancellor to exercise any official act after his final determination. He possessed no power beyond the provisions of the statute.

'This presents for the first time, in this state, the question of whether or not the chancellor, sitting as a special tribunal, can verify a bill of exceptions; to preserve the record made before such tribunal, after exercising and exhausting the extraordinary powers conferred upon him by the statute. However, being impressed that local conditions disclosed by the petition and the record invited this contest, we reviewed the facts as if the exceptions were duly preserved and made a part of the record.'

We think, however, that the appeal is controlled by section 2129 of the Code:

'Either party may have an appeal to the supreme court, and said appeal shall be governed, in all respects, as appeals from the chancery court.' (Emphasis ours.)

This section of the Code was originally passed as Chapter 111 of the Acts of 1855-56.

As suggested by Chief Justice Green in Brown v. Hows, 163 Tenn. 138, 154, 40 S.W.2d 1017, it was passed to meet the decision of Wade v. Murry, decided in 1854 and reported in 34 Tenn. 50, wherein it was held that the Chancellor, hearing contested elections for judicial offices, sat as a Special Tribunal, not as a Chancellor, and that his decision was not subject to review. We think the language of Code, section 2129, is clear and needs no construction. The appeals in such cases shall be governed 'in all respects, as appeals from the chancery court.'

We think further, that since the defendant took the precaution of having the Chancellor authenticate the Bill of Exceptions simultaneously with or at the time he entered his final decree that the statement in the opinion of Barham v. Dension, supra, does not raise the question of the authority of the 'Special Tribunal' in the instant case. However, the complainant in his motion to dismiss the bill makes the further point that no motion for a new trial was made in this case, and this, we think, presents a serious question. We recognize that section 2129 of the Code provides that the appeal in the instant case is 'in all respects, as appeals from the chancery court,' but,

'There is a class of cases heard in the chancery court upon oral testimony illustrated by Toomey v. Atyoe, 95 Tenn. 373, 32 S.W. 254; Beatty v. Schenck, 127 Tenn. 63, 152 S.W. 1033; Choate v. Sewell, 142 Tenn. 487, 211 S.W. 190; and Trice v. McGill, 158 Tenn. 394, 13 S.W.2d 49. The first two of these cases were prior to chapter 119 of the Acts of 1917. The last two were subsequent to that act, but were tried upon oral testimony in the chancery court without the consent of parties expressed in writing. All these cases were reviewed as law cases upon appeal in the nature of a writ of error. They were tried irregularly, not according to the forms of the chancery court, and were not reviewed de novo as upon appeal in equity. It does not appear distinctly from the reported decisions in these cases whether motions for new trial were made therein or not. A motion for a new trial was necessary in each case. * * * The effect of the regulation is to secure a bill of exceptions in every chancery case tried on oral testimony, of which a review is sought, and a motion for new trial in every such case, not tried by consent of parties 'expressed in writing,' according to the proisions of chapter 119 of the Acts of 1917.' Fonville v. Gregory, 162 Tenn. 294, 301, 302, 36 S.W.2d 900, 902. (Emphasis ours.)

This rule was approved in Broch v. Broch, 164 Tenn. 219, 223, 47 S.W.2d 84.

The...