Exum v. Griffis Newbern Co.

• Decision Date: 09 March 1921
• Citation: 230 S.W. 601,144 Tenn. 239
• Parties: EXUM ET UX. v. GRIFFIS NEWBERN CO. ET AL.
• Court: Tennessee Supreme Court

230 S.W. 601

144 Tenn. 239

EXUM ET UX. v. GRIFFIS NEWBERN CO. ET AL.

Supreme Court of Tennessee.

March 9, 1921

Error to Circuit Court, Madison County; R. B. Baptist, Judge.

Suit by the Griffis Newbern Company and another against Martin V Exum and another.The case was transferred on defendants' motion to the circuit court for trial before such court and a jury, and then retransferred on motion of complainants to the chancery court.Defendants bring error from the judgment striking the cause from the docket of the circuit court and retransferring it.Judgment affirmed, and cause remanded to the chancery court for further proceedings in accordance with the opinion.

J. T Rothrock, Jr., of Jackson, for plaintiffs.

L. L Fonville and R. F. Spragins, both of Jackson, for defendants.

L. D SMITH, Special Judge.

The correctness of the judgment of the circuit court appealed from, by which this cause was transferred to the chancery court of the same county depends upon the construction and constitutionality of chapter 90 of the Public Acts of 1919, which act undertook to abolish jury trials of the chancery court.

The cause was begun by an original bill brought in the chancery court of Madison county by Griffis Newbern Company v. Martin V. Exum, seeking to recover some $3,000 on a promissory note.

Later, and before the original bill was answered, the complainant filed an amended and supplemental bill, making Mrs. Exum a partydefendant thereto, and seeking to set aside a conveyance alleged to have been made by Martin Exum to his wife fraudulently and for the purpose and with the intent of delaying and defrauding the creditors of said Martin Exum.Thereupon the Exums answered the bill, denying that there was any liability on the note by reason of the fact that it was without adequate consideration, and that the same had been paid, and denying the fraudulent execution of the deed.

In the answer the defendants to the bill demanded a jury to try the issues of fact presented therein.When the cause came on for trial the defendants entered a motion before the chancellor to transfer the cause to the circuit court of Madison county, in compliance with the provisions of chapter 90 of the Public Acts of 1919, for trial before that court and a jury.This motion was allowed, and the cause was transferred to the circuit court, and there docketed.Subsequently Martin Exum was declared a bankrupt, and T. W. Pope, his trustee, was permitted to become a partycomplainant.

The original complainant and trustee in bankruptcy filed and presented a motion to have the case retransferred to the chancery court, upon the ground that it had been transferred to the circuit court without authority of law.This motion was allowed, and the judgment from which the defendants have appealed to this court was pronounced, striking the cause from the docket of the circuit court and retransferring it to the chancery court.

This action of the circuit court is assigned as being error upon the ground that the cause falls within the provisions of section 3 of chapter 90 of the Acts of 1919, which requires that whenever any defendant remands a jury trial in the chancery court in any cause of which that court has jurisdiction by virtue of Acts 1877, c. 97, the chancellor shall transfer the cause to the circuit court, where it shall be tried before the court and a jury.

The manifest purpose of the act in question was to abolish jury trials in the chancery court.The first section of the act specifically repeals those sections of the Code, carried into Shannon's Code at sections 6282and6287, which gives to either party to a suit in chancery the right to have a jury try and determine any material fact in dispute.Section 2 of the act provides that every party suing in the chancery court upon a cause of action which that court has jurisdiction of by virtue of chapter 97 of the Acts of 1877, being an act to increase the jurisdiction of the chancery court, shall be conclusively presumed to have waived the right to demand a jury by his not having elected to sue at law, and that every defendant to any such suit shall likewise be conclusively presumed to have waived the right to a trial by a jury unless he shall demand a jury in the first pleading filed by him.Section 3 then provides that whenever a defendant demands a jury trial in the chancery court in any cause of which that court has jurisdiction by virtue of the act of 1877 the chancellor shall transfer the cause to the circuit court of the same county, and the cause shall be docketed and tried in the circuit court before the court and a jury.

Thus it will be seen that the only method by which any party can obtain a jury trial in any cause brought in the chancery court is to have the cause transferred to the circuit court, and the only case in which such action can be had is upon the application of the defendant, who demands a jury in his first pleading, and then only in a case of which the chancery court has jurisdiction by virtue of the act of 1877.

The defendants complied with the act in so far as demanding a jury trial in their first pleading is concerned, and, if the cause is one of which the chancery court had jurisdiction by virtue of the act of 1877, it was properly transferred to the circuit court, and the circuit judge acted erroneously in sending it back to the chancery court.

The chancery court did not acquire jurisdiction of this cause by virtue of the act of 1877, for the reason that jurisdiction in the chancery court to hear and determine a cause of this character had been conferred by Act1851-52, c. 365, carried into the Code of Tennessee at sections 4288 to 4295(Shan. Code 6097-6101).

Section 6097 provides:

"Any creditor, without first having obtained a judgment at law, may file his bill in chancery for himself, or for himself and other creditors, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering and delaying creditors, and subject the property, by sale or otherwise, to the satisfaction of the debt."

Section 6100 provides:

"The court has the same power and jurisdiction in all respects to set aside fraudulent conveyances and other fraudulent devices, in the cases mentioned * * * and to subject the property, by sale or otherwise, to the payment of debts, as if the creditor had obtained judgment, and execution thereon had been returned unsatisfied."

Section 6101 provides:

"And, in case the complainant fails to establish the fraud, the court shall proceed to render judgment on his claim, ascertaining the amount, when disputed, by reference to the clerk and master, or by an issue to be tried by a jury; but the plaintiff shall pay all costs, except such as are incident to taking the judgment."

Prior to the enactment of the legislation above quoted from the Code the chancery court did not have jurisdiction in a case of this kind.McKeldin v. Gouldy,91 Tenn. 677, 20 S.W. 231.

The jurisdiction of the chancery court having been conferred upon it prior to, and entirely independent of, the act of 1877, it is clear that the case does not fall within the provision of section 3 of the act of 1919, and that there is no provision in that act which authorized the chancellor to transfer this cause to the circuit court.His action in doing so was erroneous, and it was the duty of the circuit judge, when the matter was called to his attention by proper motion, as was done in this cause, to retransfer the case to the chancery court.

But it is argued that, inasmuch as no jury trial could be had in the chancery court, this interpretation of the act of 1919 has the effect to deprive the defendant of a jury trial, guaranteed to him under the provisions of section 6 of article 1 of the Constitution.It is said that this cause combines both a legal and an equitable remedy; that the action on the note is strictly one at law, while the effort to set aside the fraudulent conveyance is an equitable proceeding, and that the act in question is susceptible of an interpretation which would authorize a jury trial, and thus avoid the unconstitutionality of the law.

This contention overlooks the provision of the act which clearly limits the right to a transfer of the cause for a jury trial in the circuit court to that class of cases of which the chancery court has jurisdiction by virtue of the act of 1877, and that the present cause falls within the jurisdiction of the chancery court by virtue of an act passed prior to the act of 1877.It also overlooks the manifest purpose of the act, by repealing all laws granting a jury trial in the chancery court and the transfer of the limited class of cases to the circuit court to entirely abolish jury trials in the chancery court.

It is the duty of this court, where a statute is susceptible of two interpretations, one in harmony with, and the other in violation of, constitutional provisions, to give it that interpretation in harmony with the Constitution.But this principle does not authorize the court to give to an act an interpretation merely to bring it within the constitutional limitation.Where the act is unambiguous and susceptible of only one interpretation, it must be given that construction, whatever the consequences may be when tested by the Constitution.

The act clearly does not authorize the transfer of a cause of this character from the chancery to the circuit court.Whether it is constitutional or not is another question.

If the act be unconstitutional, then there would be no color of authority for the transfer of this case to the circuit court, so that in either event the circuit judge acted properly in transferring the case back to the chancery court.

Does the act of 1919 violate...