England v. Young

• Decision Date: 15 July 1927
• Parties: ENGLAND ET AL. v. YOUNG ET AL.
• Court: Tennessee Supreme Court

296 S.W. 14

155 Tenn. 506

ENGLAND ET AL. v. YOUNG ET AL.

Supreme Court of Tennessee.

July 15, 1927

Certiorari to Court of Appeals.

Suit by W. A. England and others against George W. Young and others. Decree for complainants was reversed and set aside by the Court of Appeals, and complainants bring certiorari. Case remanded to the Court of Appeals.

Appeal from decree not followed by filing of bond or oath was not perfected, and, after expiration of time specified chancellor retained jurisdiction. Acts 1885, c. 65.

J. W Holman, of Fayetteville, and Giles L. Evans, of Nashville for England.

Sam C Tigert, of Fayetteville, for Young.

SWIGGART J.

This cause comes to this court by writ of certiorari heretofore issued to the Court of Appeals, and oral argument has heretofore been heard at the bar of this court.

The original bill was filed by England et al. on a promissory note executed for part of the purchase price of real estate, to fix a lien on the real estate to secure payment of the note, and for a decree against the defendants, removing their adverse claims to the land in question as clouds upon the title.

In March, 1924, a decree was rendered by the chancellor, sustaining all of the contentions of the complainants, and directing that the land in question be sold to satisfy the judgment rendered against the maker of the note above referred to, unless the judgment should be paid within 60 days.

This decree contains the following order for an appeal:

"To all of the foregoing findings, orders, and decrees herein the defendants except and pray an appeal to the next term of the Supreme Court at Nashville, Tenn., which is granted, and are given 30 days from this date in which to execute and file this appeal bond as prescribed by statute."

No appeal bond was filed and the transcript was not filed with the clerk of this court, under said order.

Subsequently, the land in question was sold by the clerk and master of the chancery court, and his report was prepared and filed. Exceptions to this report were filed by the defendants, which were overruled by the chancellor; and thereupon, at the September term, 1924, of the chancery court, the report of the clerk and master was confirmed, and a decree was entered divesting title to said real estate out of all the defendants and vesting same in the purchaser at the clerk and master's sale. From this decree the defendants prayed and were granted a broad appeal to the Court of Appeals.

The Court of Appeals was of the opinion that the appeal from the decree rendered in March, 1924, was effective to transfer jurisdiction of the cause to the Supreme Court, from the date of its entry, since the order granting the appeal was unconditional in its terms, notwithstanding no appeal bond, or oath in lieu thereof, was ever made or filed. On this premise the Court of Appeals held that all proceedings in the chancery court subsequent to the decree of March, 1924, were coram non judice, and therefore void. The appeal of the defendants to that court was accordingly sustained, on the theory that interested parties may appeal from a void decree. The decree of the Court of Appeals directed that all decrees of the chancery court and proceedings therein subsequent to the decree of March, 1924, be reversed and set aside.

The conclusions of the Court of Appeals were based upon the opinion of this court in Jones v. Ducktown Sulphur, Copper & Iron Co., 109 Tenn. 375, 71 S.W. 821. That case was an appeal in the nature of a writ of error from the judgment of a circuit court. The defendants in error moved to dismiss the appeal on the ground that the plaintiffs in error had taken and caused to be filed their several oaths for appeal after the expiration of the time granted by the circuit judge. The court found the facts in favor of the motion, that the oaths made in lieu of appeal bonds were filed by the clerk of the trial court after the expiration of the 30 days allowed by the circuit judge, and held that the result "probably would be that the oath was a nullity." The court then said:

"But this can be of no practical benefit to the defendants, because the plaintiffs may still perfect their several appeals by taking the pauper oath or giving bond here ( Wilson v. Corry, 1 Lea, 391; Mowry v. Davenport, 6 Lea, 83; Adamson v. Hurt, 3 [Shan.] Tenn. Cas. 424), or may file the record for error on the pauper oath (Campbell v. Boulton, 3 Baxt. 354). So, while the motion to dismiss must be granted unless the proper steps, as above indicated, be taken, leave will be given the plaintiffs to perfect the appeal by taking those steps within a reasonable time, to be fixed by an order on the minutes of the court."

The three cases cited by the court in the foregoing quotation, in support of the proposition that "the plaintiffs may still perfect their several appeals by taking the pauper oath or giving bond here," were all decided prior to Acts 1885, c. 65, carried into Shannon's Code (all additions) as section 4898. This statute was not referred to by the court, and does not appear to have been called to the court's attention.

The statute of 1885 (chapter 65) is copied in full in the recent opinion of this court in Feldman v. Clark, 153 Tenn. 373, 284 S.W. 353. It provides, both with reference to appeals and appeals in the nature of a writ of error, that:

"The appeal shall be prayed for and appeal bond shall be executed or the pauper oath taken within thirty days from the judgment or decree, if the court hold so long, otherwise before the adjournment of the court."

It is further provided that, upon application made within the 30 days, the court may extend the time, "but in no case more than thirty days additional."

Prior to 1871, there was no statute limiting the time which the chancellor might grant for the perfecting of an appeal by filing an appeal bond, or by taking and filing the pauper's oath in lieu thereof, and the practice had arisen, "reluctantly acquiesced in by this court," of permitting the clerk and master to take and approve an appeal bond, or file a pauper's oath in lieu thereof, after the adjournment of the term, when authorized to do so by an order of the chancellor. Railroad v. Ray, 124 Tenn. 16, 24, 134 S.W. 858, Ann. Cas. 1912D, 910; McPhatridge v. Gregg, 4 Cold. (44 Tenn.) 324; Andrews v. Page, 2 Heisk. (49 Tenn.) 634; Snyder v. Summers, 1 Lea (69 Tenn.) 481. But this practice was not permitted in the circuit courts. In re Ricks, 7 Heisk. (54 Tenn.) 364.

The first statutory regulation of the time within which an appeal bond could be filed was chapter 59 of the Acts of 1871. This statute authorized the judge of any inferior court to allow the appellant time within which to file his appeal bond or pauper's oath, "in no case exceeding thirty days," but this extension of time could only be awarded by the terms of that statute when "the party appealing is a resident of another county or state, or is unable by reason of physical inability to be present."

In Davis v. Wilson, ...