Fonville v. Gregory

• Decision Date: 04 April 1931
• Citation: 36 S.W.2d 900,162 Tenn. 294
• Parties: FONVILLE et al. v. GREGORY et al.
• Court: Tennessee Supreme Court

36 S.W.2d 900

162 Tenn. 294

FONVILLE et al. v. GREGORY et al.

Supreme Court of Tennessee.

April 4, 1931

Certiorari to Court of Appeals, on Appeal from Chancery Court, Trousdale County; W. R. Officer, Chancellor.

Suit by Etta Fonville, executrix, and others against Herman Gregory and others.From the decree pronounced, an appeal was taken to the Court of Appeals, which transferred the case to the Supreme Court.

Cause remanded to the Supreme Court docket for argument on the merits.

L. A Ligon, of Carthage, L. E. McCluskey, of Hartsville, and Bass Berry & Sims, of Nashville, for complainants.

L. H Walker and Louis Chambers, both of Lebanon, and J. D Hankins, and Russell Wright, both of Hartsville, for defendants.

GREEN C.J.

This cause was submitted to the chancellor upon the following stipulation:

"In this cause, it is hereby agreed by all parties, by and through their solicitors, that the jury heretofore demanded in the pleadings, be and is hereby waived, and it is hereby further agreed by all parties, by and through their solicitors, that this cause be heard by the Chancellor, Hon. W. R. Officer, without the intervention of a jury, upon the pleadings.Exhibits on file, the depositions on file and upon such oral proof and documentary evidence as the parties may offer on the trial in open Court, and this cause shall be tried and heard in pursuance to or in accordance with chapter 119, Acts of 1917, of the General Assembly of Tennessee, and according to the practice in chancery or equity cases."

The case was heard in the manner stipulated, a decree pronounced, and a broad appeal taken to the Court of Appeals by losing parties.In that court, the appellees invoked the provision of chapter 94 of the Acts of 1929 that "the transcript before the Court of Appeals in cases tried in any lower court upon oral testimony must contain motion for new trial and bill of exceptions."

In reply the appellants challenged the constitutionalty of chapter 94 of the Acts of 1929, and the Court of Appeals, being of opinion that the constitutional question was presented in good faith and substantially determinative, transferred the case to this court.The case has been heard here upon the validity and upon the proper construction of the act mentioned.

In W. C. Hibbett v. H. D. Pruitt et al.,161 Tenn. page ___, 36 S.W.2d 897, disposed of the last opinion day, we discussed chapter 94 of the Acts of 1929 at some length.With reference to that portion of the act above quoted, we expressed the opinion that this provision did relate to chancery appeals in cases tried in that court upon oral testimony, the first sentence of the act having been interpreted to apply to appeals from courts of law.The court purposely refrained, in Hibbett v. Pruitt et al., from any expression as to the effect of the act upon chancery appeals and as to the extent to which the act was intended to regulate chancery appeals.

Since chapter 119 of the Acts of 1917, a case may be formally tried in the chancery court, upon oral proof by consent of the parties"expressed in writing."By reason of the act of 1917, a case so heard in that court does not lose its distinctive character as an equity case, and may be reviewed de novo upon appeal, under section 4887, Thompson's-Shannon's Code, and no motion for a new trial is necessary to obtain such a review.Watkins, Trustee, v. Sedberry,155 Tenn. 148, 290 S.W. 970;Trice v. McGill,158 Tenn. 394, 13 S.W.2d 49.This is true, unless chapter 94 of the Acts of 1929 is effective to change the practice.

The appellees construe chapter 94 of the Acts of 1929 to directly require motion for a new trial in all cases heard in the chancery court upon oral testimony, of which it is sought to have a review in the Court of Appeals.That construction seems to have been adopted by one section of the Court of Appeals in another case.

The constitutional objection to the act is that, so construed, the body of the act is broader than its caption in violation of section 17 of article 2; that, while the act is entitled one "to Regulate the Hearing of Cases in the Court of Appeals," if rendered as urged, it would regulate the hearing in the chancery court--procedure preliminary to the hearing in the Court of Appeals.

If the statute be read as immediately requiring a motion for new trial in all chancery cases heard upon oral testimony, by way of condition to review in the Court of Appeals, the act would go far beyond the extent indicated by its title.It would revolutionize the procedure for obtaining a review of cases heard in the chancery court under chapter 119 of the Acts of 1917.It would change the remedy for obtaining a review of such cases.The broad appeal authorized by section 4887, Thompson's-Shannon's Code, would become inappropriate and ineffective and an appeal in the nature of a writ of error, or a writ of error, as at law, would ordinarily be the only remedy of service.The jurisdiction of the Court of Appeals would be limited in such cases to a consideration of those errors only brought to the attention of the chancellor on motion for a new trial.

In the nomenclature of appellate practice procedure preliminary to review, remedies for obtaining review, and jurisdiction of the appellate court on review, are things distinct and apart from the hearing in the reviewing court.An act purporting in its caption merely to regulate the hearing in the appellate court could not deal with all these subjects.We cannot construe chapter 94 of the Acts of 1929 so as to involve it in this constitutional difficulty, if possible to avoid so doing.

If the statute be construed as applicable to all cases heard in the chancery court upon oral testimony, it would at least repeal by implication chapter 119 of the Acts of 1917, making such a hearing in that court, upon consent of the parties"expressed in writing," regular and according to the forms of the chancery court.So construed, as to cases heard under chapter 119 of the Acts of 1917, the act of 1929 would repeal by implication section 4887, Thompson's-Shannon's Code, providing the broad appeal in matters of equity tried according to the forms of the chancery court, taking up for re-examination the whole matter of law and fact appearing in the record.Likewise it would repeal by implication section 4889, Thompson's-Shannon's Code, permitting interlocutory appeals in the discretion of the chancellor, since a motion for a new trial naturally could not be made until after final judgment or decree.

As pointed out in Hibbett v. Pruitt et al., and in the cases therein cited, repeals by...