Hamby v. Northcut

• Decision Date: 12 October 1940
• Citation: 149 S.W.2d 484
• Parties: HAMBY et al. v. NORTHCUT et al.
• Court: Tennessee Supreme Court

149 S.W.2d 484

HAMBY et al. v. NORTHCUT et al.

Court of Appeals of Tennessee, Middle Section.

October 12, 1940.

Petition for Rehearing Dismissed December 21, 1940.

Certiorari Denied by Supreme Court March 9, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from Chancery Court, Grundy County; T. L. Stewart, Chancellor.

Suit in ejectment by Mrs. Mary Hamby and others against J. H. Northcut and others to obtain possession of certain land and to recover a judgment for waste, rents, and profits. From a decree dismissing the bill, complainants appeal.

Appeal dismissed as to J. R. Hamby, and decree affirmed as to the remaining complainants.

John A. Chumbley, of Manchester, for appellants.

Jeff D. Fults, of Tracy City, for appellees.

FAW, Presiding Judge.

The complainants' bill was dismissed, and all the costs of the cause adjudged against the complainants, by the final decree of the Chancery Court in this cause. The complainants prayed an appeal to this court, which was granted "upon complainants giving appeal bond or taking the pauper's oath", and complainants were allowed thirty days from the filing of the decree for entry in which to file bond or take the oath.

At the foot of the decree, there is a notation as follows:

"C. & M. Enter.

"T. L. Stewart, Chancellor."

And below the chancellor's signature as above indicated, the following appears:

"P.S. In the event of an appeal, J. R. Hamby, a non-resident of the State of Tennessee, will have to make bond for costs as I understand the law, and I will insist on this being done.

                                            "J.D.F."
                

Manifestly the last-quoted notation was intended by defendants' solicitor as an objection to the allowance of an appeal to J. R. Hamby (one of the appealing complainants) on the pauper's oath; but whether or not such objection was called to the attention of the chancellor does not appear.

Neither of the complainants filed an appeal bond, but all of them, including J. R. Hamby, filed the oath prescribed for poor persons within the period of thirty days from the entry of the decree.

Before the case was reached and called for hearing on the docket of this court, the defendants filed a written motion to dismiss the appeal of J. R. Hamby on the ground that the record discloses that he is a non-resident of the State of Tennessee and a resident of the State of Illinois, and therefore not entitled to prosecute an appeal on the pauper's oath.

At the hearing, this court reserved its ruling upon the aforesaid motion, without prejudice to the rights of the respective parties thereunder, and the cause was argued orally by counsel at the bar and submitted to the court upon the transcript of the record, assignments of errors by appellants, and briefs and arguments, both oral and written, by counsel for the parties, respectively.

The aforesaid motion to dismiss the appeal of J. R. Hamby must be, and it is, sustained, for the reason that it appears from the deposition of said J. R. Hamby that, at the time his deposition was taken in this cause on November 6, 1937, his home was then in the State of Illinois, and that he had been a non-resident of the State of Tennessee since the year of 1903, and neither in his "Pauper's oath for appeal" nor elsewhere in the record, does it appear that since his aforesaid deposition was taken he has become a resident of the State of Tennessee.

Only a resident of this State may prosecute a suit or an appeal upon the pauper's oath. Code, section 9080; Southern Railway Co. v. Thompson, 109 Tenn. 343, 71 S.W. 820; Goodlin v. Hutson, 16 Tenn. App. 488, 491, 65 S.W.2d 217; Scruggs v. Baugh, 3 Tenn.App. 256, 259.

There were ten persons named as complainants in the bill in this case, all of whom prayed an appeal, and the decree granting their appeal, "upon complainants giving an appeal bond or taking the pauper's oath", will be construed as granting the right to appeal on the pauper's oath only to such of the complainants as were lawfully entitled to thus prosecute an appeal; for if otherwise construed, the granting of an appeal to a nonresident would have been coram non judice. The chancellor was without power to grant to a non-resident of this State the right to appeal on the pauper's oath.

In the light of the record facts before stated, the pauper's oath filed by J. R. Hamby was a nullity, and his appeal was not perfected. After the expiration of the thirty days, the cause, in so far as J. R. Hamby was concerned, stood in the same plight and condition as if no appeal by him had been prayed or granted. England v. Young, 155 Tenn. 506, 513, 296 S. W. 14. The appeal of J. R. Hamby is dismissed.

Although the dismissal of J. R. Hamby's appeal precludes us from a review of the decree below in so far as it dismissed his suit, it may be observed that the allegations of complainants' bill show that J. R. Hamby was not entitled to a recovery. It appears from the bill that the persons named as complainants therein are Mary Hamby and J. R. Hamby and their eight children (all of whom are adults). The complainants sue in ejectment, upon allegations of superior title, to obtain possession of a tract of 437½ acres of land in Grundy County, Tennessee, and to recover a judgment for waste, rents and profits while said land was in the possession of defendants. The bill contains, among others, allegations as follows:

"The complainant, Mary Hamby is the widow of J. R. Hamby, having been decreed a divorce, by the Honorable Court on the ____ day of ____, 1928, and this Honorable Court was pleased to decree to the said Mary Hamby, a life estate in all the above described property, as alimony, and the remainder to all the above named children of J. R. Hamby and Mary Hamby, and they are tenants in common of the above tract of land.

"J. R. Hamby, left Tennessee a number of years ago, and at no time has he ever disposed of said tract of land, since it was deeded to him by his father. He joins as complainant for whatever purpose necessary to show that the title was in him until the divorce was rendered in this Honorable Court."

Obviously the above-quoted statement of the bill is, in effect, an allegation that J. R. Hamby has no title to or interest in the subject matter of this suit.

Prefatory to the disposition of the issues of fact and law arising on the record for decision by this court, we will make a statement of the substance of the pleadings, and of certain salient facts disclosed by the record.

The complainants' bill was filed on February 23, 1937, and complainants allege therein that "they" are the owners, in fee, of a tract of land which the complainant J. R. Hamby received, in fee, from his father and mother, Wash Hamby and wife Arkansas Hamby, the consideration being "love and affection for their son"; that the deed is dated February 3, 1883, and recorded in Book "G", page 143, of the Register's Office of Grundy County, Tennessee, for 437½ acres, described as follows: (then follows a description, by metes and bounds, of the tract of land in controversy "containing 437½ acres, more or less", and this is followed in the bill by the allegations which we have hereinbefore quoted with respect to the decree divorcing Mary Hamby and J. R. Hamby, the divestiture of title out of J. R. Hamby, and the purpose of J. R. Hamby's joinder in the suit).

The remaining allegations of the bill are as follows:

"Complainants would further show the court that notwithstanding their ownership, and ever since February 3, 1883, they have been entitled to the benefit, possession, use and enjoyment of said land and the profits and fruits thereof, the defendants have made some kind of claim to said land, and in 1933 they sold the timber off said land and appropriated the money derived from said sale of timber to their own use, the defendants cut and sold the valuable timber off of said land, and complainants are informed by defendants that they received $10.00 per acre for the timber, but complainants aver, and will show to this honorable court, that the timber on this land was worth more than $10.00 per acre, that defendants equalized (realized) this amount, and is informed that they received the sum of $10.00 per acre for a tract of more than 1400 acres, of which this 437½ acres was a part of the 1400 acres sold by defendants. The cutting and destruction of the valuable timber was and is an irreparable injury to the said land.

"Complainant J. R. Hamby and Mary Hamby would show the Court that they have no education, cannot sign their name, neither read nor write, that they have no means whatsoever, the only property they had was what the father of J. R. Hamby deeded to him, or left him at the time of his death. The complainants, who are the children, are in dire financial circumstances, very little education, and are forced to live on the part of land deeded to J. R. Hamby, which land is poor for agricultural purposes, and the only value they have was in the timber land, of which defendants have appropriated to their use."

After the usual prayer for process and waiver of answer on oath, the complainants pray that the title to said land be decreed to them, and that they be put in possession thereof; that an account be taken to ascertain the value of the rents and profits, the timber cut, and the amount of waste and damage committed on said land by defendants, and that complainants have a decree against the defendants therefor; "that any deed that defendants might claim for said land be set aside, and declared null and void, and a cloud on complainants' title, and removed as such, and that the defendants be perpetually enjoined from setting up any claim, or doing any acts whatsoever, under or by virtue of said deed or paper writing"; and complainants pray that they be given such other and further relief as they may be entitled to at the hearing.

The defendants named in the original bill were J. H. Northcut and Tom (T. B.) Northcut, and it was subsequently agreed that...