Carpenter v. Wright

• Decision Date: 21 January 1929
• Citation: 13 S.W.2d 51,158 Tenn. 289
• Parties: CARPENTER v. WRIGHT.
• Court: Tennessee Supreme Court

13 S.W.2d 51

158 Tenn. 289

CARPENTER v. WRIGHT.

Supreme Court of Tennessee.

January 21, 1929

Certiorari to Court of Appeals, on Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Suit by Mrs. Nelle W. Carpenter against Sidney B. Wright.The Court of Appeals affirmed a decree dismissing the bill, and complainant brings certiorari.Affirmed.

Lowndes Turney and Estill & Spurlock, all of Chattanooga, for complainant.

S. B Smith, of Chattanooga, for defendant.

GREEN C.J.

The complainant, Mrs. Nelle W. Carpenter, brought this suit against her father, Sidney B. Wright, to recover the proceeds or the value of certain property alleged to have belonged to her, which property she charges was converted by her father and her mother, now deceased.The suit is treated by her counsel as one of indebitatus assumpsit, brought in the chancery court under chapter 97 of the Acts of 1877.There was a decree for the defendant by the chancellor, which the Court of Appeals affirmed.The writ of certiorari was granted by this court, and the case has been elaborately argued and briefed here.

The complainant is a granddaughter of the late Seth B. Moe, of Chattanooga, who died June 1, 1917.He left surviving him two daughters, Mrs. Mae Moe Wright, the mother of complainant and Mrs. Helene Moe Sale.The grandfather left a will under which his estate was divided between his two daughters.On July 16, 1919, the two daughters sold the property involved in this suit for $40,000 cash and divided the proceeds between themselves.The defendant, Sidney B. Wright, promoted this sale and acted for his wife in the reinvestment or expenditure of her share of the proceeds.

Mrs Mae Moe Wright, the mother of the complainant, died about October 27, 1921, intestate, according to the original bill, possessed of a considerable estate.It appeared from the bill that the defendant, Sidney B. Wright, was in possession of this estate, claiming the personalty as surviving husband, and the realty as tenant by the curtesy.

The bill set out that, prior to his death, the complainant's grandfather had conveyed to his daughters, Mrs. Mae Moe Wright and Mrs. Helene Moe Sale, reserving a life estate in himself, certain real estate in Chattanooga; that this conveyance to the daughters was in trust for their children "at such time or dates as such named children shall respectively arrive at the age of 25 years, or to their legitimate successors by descent in fee simple,"the trustees to have the use and enjoyment of the property until the grandchildren should reach the age of 25 years, respectively.

The bill averred that said conveyance was duly executed by the grandfather and delivered to Mrs. Mae M. Wright, the mother of the complainant, but that said deed was suppressed by Mrs. Wright, and was found by the complainant among her mother's papers after the death of the latter.A paper writing of the tenor above described was filed by the complainant as an exhibit to her bill.It appeared to have been signed by her grandfather.It was, however, not dated nor acknowledged.A blank form of acknowledgment appeared on the instrument, which had not been filled out, and likewise the date line and lines for the signatures of witnesses were left blank.

The bill sought to recover the value of complainant's interest in said real estate under said deed from the defendant, individually or as surviving husband, it being charged that he was personally liable as having aided in the diversion of the trust fund, and that complainant moreover was entitled to follow the proceeds of her share of this real estate into her mother's estate, then in possession of her father.Other relief of an equitable nature was prayed, which it is not necessary to notice now.

The defendant answered the bill and denied that the conveyance upon which the suit was founded was ever in fact executed or delivered by complainant's grandfather, or that said conveyance was intended to be effective.It was contended, in substance, by the answer that the paper writing above mentioned was merely a tentative draft of a conveyance which the grandfather thought of making; that it was submitted to his daughters, not approved by them, and abandoned.Other statements were in the answer, which we may omit restating here.

Later an amended and supplemental bill and other pleadings were filed in the case, the details of which we likewise find it unnecessary to set out.

A jury was demanded by the complainant and certain issues submitted.The jury found that (1) the grandfather did sign the purported deed of trust; (2) that he did deliver the deed of trust into the hands of Mrs. Mae Moe Wright; (3) that the delivery was made during 1915 or 1916; (4) that defendantSidney B. Wright knew of the existence of said deed of trust when the property conveyed by it was sold; (5) that at the time of said sale the said Sidney B. Wright knew that said trust deed was or had been in the possession of Mrs. Mae Moe Wright; (6) that said Sidney B. Wright did not receive and apply to his own account the proceeds of the sale; (7) that Nelle W. Carpenter was born November 30, 1893.

The case was tried at the January, 1927, term of the Hamilton county chancery court.The verdict of the jury was returned on February 25, 1927.By different orders the time of defendant for the entry of a motion for a new trial was extended.On March 25the defendant filed with the clerk of the court a motion for a new trial.No motion for a new trial was spread upon the minutes of the court, nor was any entry made upon the minutes showing that a motion for a new trial had been filed, during the January, 1927, term, the term at which the case was tried.

The January term adjourned on April 2, and on that day an order was entered allowing the defendant 60 days from and after the adjournment of that term of the court in which to prepare and file a bill of exceptions.

During the month of April, 1927, at the term succeeding the trial term, the motion for a new trial was called up.The chancellor was of opinion that, no motion for a new trial having been spread on the minutes, and no entry having been made on the minutes showing that a motion for a new trial was filed during the trial term, he was without power to consider the motion for a new trial presented to him as aforesaid.The chancellor, however, was of opinion that the complainant's suit should be dismissed on account of her laches, and, no issue of laches having been submitted to the jury, he felt free to pass on this question, and entered a decree dismissing the bill for this reason.Subsequently he allowed a bill of exceptions presented within 60 days of the order made on the last day of the trial term.

The complainant appealed from the chancellor's decree to the Court of Appeals and the defendant filed the record in that court for writ of error.A motion to strikethe bill of exceptions was made and allowed by the Court of Appeals, but that court, acting on a written finding of facts which the chancellor had made, agreed with him that the defense of laches was good, and affirmed his decree dismissing the bill.

The action of the Court of Appeals in striking the bill of exceptions is assigned for error upon defendant's petition for certiorari, and we think that action of the learned court was erroneous.

If it be conceded that the chancellor properly held that he could not consider the motion for a new trial under the circumstances of the case, nevertheless, the bill of exceptions does not go out with the motion for a new trial.As above stated, an order was entered on the minutes of the last day of the trial term, granting the defendant 60 days in which to prepare and file his bill of exceptions.

Chapter 275 of the Acts of 1899, carried into Thompson's-Shannon's Code at section 4693aandsection 4693a1, is as follows:

"In all cases of appeal, and appeal in nature of writ of error from the circuit and chancery courts to the Supreme Court, the judge or chancellor may, in his discretion, allow the parties time in which to prepare and file the bill of exceptions, not to exceed thirty days from and after the adjournment of the court."

"Bills of exception signed by the court, and filed under section 1 of this act(Code, § 4693a), after the adjournment of the court for the term, shall be made and become a part of the record in the cause in which it may be filed as fully and to all intents and purposes as if signed by the court and filed before the adjournment of the court.(1899, c. 275, § 2.)"

This statute was considered by the court in Rhinehart v. State,122 Tenn. 698, 127 S.W. 445, andDunn v. State,127 Tenn. 267, 154 S.W. 969.It was shown in these cases that under the statutethe bill of exceptions did not depend on the entry or upon the disposition of the motion for a new trial.The motion for a new trial, made at the trial term, could be disposed of at a subsequent term.It was, however, necessary that the bill of exceptions be filed at the trial term or within 30 days thereafter, by permission granted at the trial term under this statute.

The conditions attendant upon the filing of a bill of exceptions were thus stated in Dunn v. State, supra:

"The periods, then, during which a bill of exceptions may be lawfully filed, are these: (1) During the whole of the ordinary term of the court at which the cause is tried, if there be no order of that court fixing a shorter period within the term; (2) during such special period fixed by the court within the ordinary term if there be any such period fixed; (3) during any period not exceeding 30 days after the adjournment, which the judge may grant on his minutes prior to adjournment; (4) during any extension of the term,

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