Ferris v. Bloom

• Decision Date: 25 September 1915
• Citation: 178 S.W. 1112
• Parties: FERRIS v. BLOOM.
• Court: Tennessee Supreme Court

178 S.W. 1112

FERRIS v.BLOOM.

Supreme Court of Tennessee.

September 25, 1915.

Certiorari to Court of Civil Appeals.

Will contest between David H. Bloom, as proponent, and Kittie S. Ferris, as contestant.From a judgment for proponent, contestant appealed to the Court of Civil Appeals, and, that court having affirmed the judgment, she brings certiorari.Affirmed.

Littleton, Littleton & Littleton, of Chattanooga, for contestant.Sizer, Chambliss & Chambliss, of Chattanooga, for proponent.

BUCHANAN, J.

This is a contested will suit.The only question for decision is whether the parties waived a jury trial of the issues made up in the circuit court.That court tried the issues without a jury, and sustained the will.The ruling of the circuit judge was that the parties had waived a jury trial.The Court of Civil Appeals, in an opinion by Mr. Justice Higgins, affirmed the judgment, and contestant presents the question to us by her petition for certiorari.

It is not insisted that either party made a demand for a jury trial of the issue in the manner prescribed by chapter 4, Acts of 1875, as amended by chapter 220 of the Acts of 1889(Shan. Code, §§ 4611-4616, inclusive).Contestant insists that such demand was not necessary to be made, basing this insistence upon section 3912, Shan.Code 1896, which provides that "the issue shall be tried by a jury," meaning the issue devisavit vel non.Proponent insists that the act of 1875 and the act of 1889 were subsequent in date of passage to the statute(section 3912, supra), and that the Legislature in the passage of the subsequent acts intended them to apply to issues devisavit vel non.

Beyond all doubt, such an issue was a civil suit, triable by jury when our jury statutes above named were passed.The first of those statutes, in express terms, applies to any civil suit, and the second to all civil suits triable by jury.We must ascribe to the Legislature the knowledge that an issue devisavit vel non was a civil suit triable by jury, and it follows as a conclusion entirely reasonable that the legislation includes such issues along with other civil suits triable by jury, and imposes on parties to such issues the duty of making a demand for a jury trial in the manner required by the acts.

It is manifest, without authority, that the two acts should be construed together; but the point has been expressly ruled in Swink v. McKnight's Executors, 88 Tenn. (4 Pick.) 765, 14 S. W. 311.The terms of these jury acts indicate their application to the trial of issues of fact in courts of chancery; but a contrary ruling on this point, based upon sound reason, has been made.Cheatham v. Pearce & Ryan, 89 Tenn. (5 Pick.) 668, 15 S. W. 1080;Worthington v. Railroad, 114 Tenn.(6 Cates) 177, 86 S. W. 307, 4 Ann. Cas. 1002, and note.

We see no reason to support the view that the statutes in question were not intended to apply to issues devisavit vel non which might not as well support a similar view as to other civil suits in which the statutes have been held to apply.Garrison v. Hollins, Burton &Co., 70 Tenn.(2 Lea) 684;Coulter v. Sewing MachineCo., 71 Tenn.(3 Lea) 115;Railroad v. Foster, 78 Tenn.(10 Lea) 351;McGuire v. Railroad, 95 Tenn. (11 Pick.) 707, 33 S. W. 724;Warren v. Grocery Co., 96 Tenn. (12 Pick.) 574, 36 S. W. 383;Casey, etc., Mfg. Co. v. Weatherly, 97 Tenn. (13 Pick.) 297, 37 S. W. 6.

Contestant insists that the words "triable by jury," as used in the acts, should be held to apply only to cases where a jury trial was "permissible," and not to cases where such a trial was "imperative," under a statute such as section 3912, Shan.Code.This argument is without merit.Under our Constitution, where the right to trial by a jury exists, whether it be declared by the imperative terms of a statute or not, the right is protected by article 1, § 6, of that instrument, which declares "the right of trial by jury shall remain inviolate."The permanency of the right depends upon the Constitution.If the right rested alone in the statute, the Legislature could by a subsequent statute modify or altogether destroy the right, according to its will.It has long been settled that the acts of 1875 and 1889 do not violate the right of trial by jury, nor contravene the provision of the Constitution above set out.Indeed, it has been said that the right to trial by jury is carefully secured by these acts to the citizen on his demand, and the public policy underlying the acts has been distinctly approved.Garrison v. Hollins, Burton &Co., 70 Tenn.(2 Lea) 684;McGuire v....