Ex parte Calhoun

• Decision Date: 11 December 1948
• Parties: Ex parte CALHOUN.
• Court: Tennessee Supreme Court

215 S.W.2d 789

187 Tenn. 372

Ex parte CALHOUN.

Supreme Court of Tennessee.

December 11, 1948

Appeal from Chancery Court, Hamilton County; Alvin Ziegler Chancellor.

Ex parte proceeding by Harry A. Calhoun to perpetuate testimony of witness, opposed by Naomi Calhoun. From the decree, Naomi Calhoun appeals.

Affirmed.

Tom J. Davis and Joe Frassrand, both of Chattanooga, for appellant.

Meacham & Meacham, of Chattanooga, for appellee.

GAILOR Justice.

This appeal presents a controversy rising from a proceeding to perpetuate the testimony of a witness under provisions of Code sections 9854 through 9867. Petition was filed in the Chancery Court of Hamilton County on March 9, 1948, and as amended, it alleged that Petitioner and his wife, Naomi Calhoun, were married in Hamilton County on September 21 1946, and resided in Chattanooga since that date; that on or about March 6, 1948, three days before the petition was filed, the wife wilfully left Petitioner without cause stating that she would not live with him any longer; that as a result of said alleged desertion, Petitioner fully expects litigation to follow and that said separation will necessitate litigation to settle marital status and property rights; that Petitioner expects, after the necessary waiting period of two years, to sue his wife for divorce on the ground of wilful desertion; and before the expiration of two years, Petitioner apprehends that his wife may bring action against him, demanding a property settlement, maintenance and support; that Petition's mother, Mrs. Alice Calhoun, has lived in his home ever since his marriage; has witnessed the conduct and relationship of himself and his wife; that his mother was present when his wife left home and knows the surrounding facts and circumstances; that his mother is the only witness by whom he can prove the facts relative to the conduct of himself and his wife during their marriage; that his mother is 71 years of age, in feeble health, and without her testimony, Petitioner will be unable to disprove any charges that his wife might make against him in any future divorce or separation proceeding, and finally, that Petitioner was innocent of any conduct or action to his wife which justified her alleged desertion of him.

An order to show cause, with a copy of the petition was served on Naomi Calhoun, the wife, on March 10, 1948, and hearing set for March 16, 1948. The wife, through counsel, filed demurrers to the petition and to the petition as amended. The Chancellor overruled the demurrers and ordered the taking of the deposition of Alice Calhoun, Petitioner's mother, before the Clerk and Master. This appeal is the result of that order, and is 'from the decree overruling her demurrer and ordering the deposition of Alice Calhoun to be perpetuated.'

The numerous assignments of error go far beyond the proper scope of the appeal. By the first assignment of error, it is insisted that the petition was insufficient to justify an order to perpetuate testimony, because (1) there was no dispute between the parties, (2) that no threatened action is shown, and (3) that no property rights of either of the parties are shown to be involved.

This proceeding to perpetuate testimony is brought under the authority of the statute, and the petition was drawn to conform carefully with the provisions of sections 9854 and 9855 of the Code, which are as follows:

'9854.

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