Freeman v. Freeman
| Decision Date | 23 July 1954 |
| Citation | 270 S.W.2d 364,1 McCanless 75,197 Tenn. 75 |
| Parties | , 197 Tenn. 75 FREEMAN v. FREEMAN et al. |
| Court | Tennessee Supreme Court |
James W. K. Johnson and Clyde W. Key, Knoxville, for complainant.
Oscar Rogers and R. M. Vertrees, Knoxville, for defendants.
By her Chancery Court bill Mrs. Minnie B. Freeman sought to be adjudged the owner by way of a resulting trust to a residence, the record title to which was vested in her deceased and intestate son, Aaron Freeman, whose widow and children, all minors, are the defendants. They, in required form, deny in full those allegations of the bill which it is necessary for complainant to prove in order to establish the resulting trust. The Chancellor found 'that she has failed to sustain the allegations of the same by proof'. From his decree dismissing her bill Mrs. Freeman prayed, was allowed, and perfected an appeal. The Court of Appeals reversed, and adjudged Mrs. Freeman entitled to a one-half undivided interest in the residence. Petition for writ of certiorari presented in behalf of the window and children of the deceased son was granted.
There is no bill of exceptions. But the Court of Appeals held as a part of the technical record that which it considered to be the findings of the Chancellor. The Court further held that in the absence of a bill of exceptions these findings, 'being a part of the technical record, are open to review by this Court'; and that these findings were that Mrs. Freeman and her son had jointly purchased and paid for the property for the benefit of the two of them; hence, that each was entitled to a one-half interest.
Attention is at once attracted to the unique situation that the facts stated by the Court of Appeals to have been found by the Chancellor, and said to have been made a part of the record, are contrary to the result reached by the Chancellor's decree.
It is the insistence of the petitioners that the Court of Appeals erred in holding that there is in the technical record the Chancellor's supposed findings of fact, and that this Court erred in giving effect to such alleged findings. This insistence involves the proceedings as they appear of record, considered in the light of sections 10620 and 10621, as well as independently of those Code sections.
On May 10, 1952 final decree was entered. Therein it was recited that Mrs. Freeman had 'failed to sustain the allegations of same (her bill) by proof', and dismissing her bill. It was from this decree that Mrs. Freeman prayed, was allowed, and perfected an appeal by filing cost bond on June 9. That was the same date that her motion for a new trial was overruled. No mention of a bill of exceptions is made in either the decree of May 10 or that of June 9 overruling the motion for a new trial.
The decree of May 10, being the one from which the appeal was had, recites that the Court had theretofore 'rendered an opinion which, on application of complainant, is made a part of this decree by reference, and need not be copied, but filed as a part of the record'. The 'opinion' referred to in this decree was an oral statement on April 22 by the Chancellor as to what he found the facts to be.
There next appears an order entered February 17, 1953. This was more than eight months after Mrs. Freeman had perfected her appeal; therefore, several months after the Clerk should have certified the record to the Court of Appeals. Up to that time no findings of fact had been filed by the Chancellor. This order of February 17, 1953, after reciting that the Court rendered an oral opinion referred to in the final decree of May 10, 1952, says that this 'opinion was in the words and figures following.' Then follows what is said to be the Chancellor's findings as taken down by the Court Reporter. This order recites that the Court refused Mrs. Freeman's motion to make this stenographic report of his findings a part of the record because (1) the Chancellor was 'without jurisdiction to allow said motion' and (2) the 'evidence upon which said opinion was based had not been preserved by bill of exceptions and made a part of the record.'
On February 18, 1953, being the day following the entry of the order just above mentioned, the Clerk certified the transcript. That transcript was filed in the Court of Appeals on the following day, to wit, February 19, 1953.
A stipulation signed by the attorneys for the respective parties, and filed in the Court of Appeals on June 24, 1953, is to the effect that in as much as the Court of Appeals was of the opinion that the cause should be remanded 'with directions to the Chancellor to make * * * a part of the record' the opinion of the Chancellor which was by reference made a part of the final decree, now, 'in order to avoid a remand' the parties agree that the stenographic report of the Chancellor's opinion as copied into the order of February 17, 1953 is correct except that following the statement 'amount to one-half interest to Ralph Freeman's family', the Chancellor further stated 'unless the complainant will accept the Court's suggestion and amend her bill accordingly, a decree will be entered dismissing her bill'.
This stipulation conclusively establishes two facts, to wit, (1) that the stenographic report of what was the Chancellor's oral statement was not a complete report of the Chancellor's oral statement, and (2) the Court of Appeals finally considered the matter upon a stipulation of the parties as to what the oral statement of the Chancellor was; and thus could not have considered it upon what appeared in the technical record.
Aside from any other consideration as to the correctness of this action of the Court of...
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