Hartman v. Spivey

• Decision Date: 06 August 1938
• Citation: 123 S.W.2d 1110
• Parties: HARTMAN et al. v. SPIVEY et al. (three cases).
• Court: Tennessee Supreme Court

Page 1110

123 S.W.2d 1110

HARTMAN et al. v.SPIVEY et al.(three cases).

Court of Appeals of Tennessee, Middle Section.

August 6, 1938.

Certiorari Denied by Supreme Court January 21, 1939.

Appeal from Chancery Court, Macon County; A. F. Officer, Chancellor.

Three suits, one by C. G. Hartman and others, the second by C. G. Hartman, and the third by J. W. Hartman, against R. R. Spivey and others, attacking judgments and requesting injunctions to enjoin execution on the ground that the complainants had been prevented from setting up their defenses in the law court. From adverse decrees, the complainants appeal.

Decrees affirmed.

J. R. Smith, of Lafayette, and Roberts & Roberts, of Nashville, for appellants Hartman.

P. J. Anderson, of Gainesboro, and C. R. Jent, of Lafayette, for appellee Spivey.

CROWNOVER, Judge.

These three suits were consolidated in the Chancery Court.

These proceedings seek relief against judgments at law on the grounds that the complainants were prevented, by the acts of the defendant, from setting up their defenses in the law court, which defenses were good and valid, and further that these are cases of complicated accounts which could not be satisfactorily handled in a law court.

The defendant, Spivey, denied that the complainants were prevented from presenting their defenses and that these are cases of complicated accounts, and asserted that the cases were disposed of in the Circuit Court and that he had just claims against these parties.

The records of the cases were lost.There has been supplied what purports to be a copy of the lost record in the Chancery Court.

R. R. Spivey instituted suit in a justice of the peace court against C. G. Hartman, B. W. Hartman, and J. W. Hartman for the collection of a note for $200.At the same time he instituted suit against C. G. Hartman for the collection of an account of $166.17, and against J. W. Hartman on an account of $205.66.

At the trial of these cases the Hartmans filed a number of cancelled checks, which showed on their face that some were in payment of the note and some in payment in full of the accounts, and they contended that the note and accounts had been paid in full.Spivey contended that the checks had been altered and the words "on account" and "on note" had been added after the checks were cashed by him; that these checks had not been given him in payment of the note or accounts but that he had given the complainants cash or merchandise for these checks.

The justice rendered judgments for $220.20 against C. G., B. W., and J. W. Hartman on the note; for $166.17 against C. G. Hartman on an account; and for $205.67 against J. W. Hartman on an account — in favor of R. R. Spivey.

It appears that the Hartmans filed appeal bonds, which the justice refused to accept.They then filed their paupers' oaths, which the justice refused for the reason that they owned property.

They then filed a petition for certiorari in the Circuit Court, which was granted, and the causes were removed to the Circuit Court.

It appears that the three cases were brought to the Circuit Court as one case, and that evidence was heard, and that Spivey filed a demurrer on the ground that there should have been separate petitions for the writs of certiorari in each case, which demurrer was sustained and the petition dismissed.

The Hartmans then filed three bills in the Chancery Court, each bill attacking a judgment, asking for injunction to enjoin execution, and that the case be tried de novo and dismissed.

Injunctions were issued on the execution of bonds.

The defendant Spivey answered the bills and alleged that a hearing was held before the justice at which the complainants presented a number of cancelled checks and insisted that they were given in payment of the note and accounts; that the defendant(the plaintiff in the justice's court) contended that the checks had been altered; that the justice rendered judgments for the amounts sued for; that these cases were dismissed in the Circuit Court; that the complainants have no valid defenses and the suits are not complicated.

The defendant filed demurrers with the answers, and later filed motions to dissolve the injunctions.The Chancellor ordered that injunction bonds be filed, and overruled the demurrers.Bonds were filed, signed by the three Hartmans and H. C. Hesson.

Each complainant amended his bill so as to confess judgment.

On motion of counsel the Chancellor ordered the three causes consolidated and ordered a reference to Fred Gregory, Special Clerk and Master, to take proof and state accounts between the parties.

At the hearing before the Special Clerk and Master on the reference, the complainants testified that their original cancelled checks, which checks had been given in payment of the note and accounts, had been filed with the Circuit Court Clerk and had been lost or misplaced by him, and they introduced a list of checks which they testified was a copy of each of said checks, which paid said note and accounts in full.Spivey testified that the accounts sued on by him were correct and that the note was not entitled to any credits.

The Special Master reported that J. W. Hartman's account should be credited with $12 and C. G. Hartman's account with $37.50, but that the note was entitled to no credits.

This report seems to have been ignored.It was not excepted to and was not confirmed by the Chancellor.

It appears that the records of these cases in the Circuit Court and Chancery Court were lost.At the March Term, 1935, the Chancellor ordered that the record in the Chancery Court be supplied.

On July 30, 1935, copies of the pleadings and depositions in the Chancery Court were filed, accompanied by affidavit of J. A. Smith, former solicitor for the complainants.

It appears that no order of the court was entered supplying the record and substituting the copies for the originals (Gibson's Suits in Chancery, 4th Ed., secs. 944-945;Code, sec. 9887 and notes).

But it is stated in the Chancellor's decree of Sept., 1935, that by agreement of counselthe case was heard on the record as supplied.

At the September Term, 1935, the defendant Spivey moved the court to dissolve the injunctions and render final judgments in his favor because the complainants had confessed judgments and the records and exhibits had been lost and could not be supplied.

At this term the defendant Spivey presented to the court certified copies of the injunction bonds and moved the court to be allowed to file them in lieu of the originals by way of supplying the record, which bonds were ordered to be filed.These bonds were signed by the three Hartmans, Mrs. B. W. Hartman, Mrs. J. W. Hartman, Anice Hartman, and Dr. H. C. Hesson.

At the September Term, 1935, the Chancellor rendered his decree, which recites:

"These consolidated causes came on to be heard, tried and determined on this and former days of the term, by and before the Hon. A. F. Officer, Chancellor, upon the alleged supplied record of the causes furnished by the several complainants in these several causes, and upon the agreement of counsel for both sides, that the causes would be determined by the court upon such record as supplied, and from all which the court finds, orders and decrees as follows, to-wit:

"That there is not supplied in the record in either of these causes sufficient pleading by the several complainants upon which the court could grant relief as against the judgments at law complained of."

And he rendered decree, on September 12, 1935, in favor of the defendant Spivey and against C. G. Hartman, principal, and B. W. Hartman, J. W. Hartman, Vera Hartman, Pearl Hartman, Anice Hartman, and Dr. H. C. Hesson, sureties, for $185.72; against J. W. Hartman, principal, and all of the other above named parties, sureties, for $229.59; and against C. G. Hartman, B. W. Hartman, and J. W. Hartman, as principals, and Vera Hartman, Pearl Hartman, Anice Hartman and Dr. H. C. Hesson, sureties, for $245.91.

The complainants excepted to said decree and prayed and were granted an appeal and were allowed thirty days in which to perfect said appeal, but did not perfect same.

On September 30, 1935, the complainants filed a petition for a rehearing, alleging that through oversight the supplied pleadings were not passed to the Chancellor and were not before him when he rendered his decree.

The affidavit of J. M. Chamberlain, Clerk and Master, was filed, certifying that the deputy clerk "failed to attach all papers as prepared by her to the supplied file, and the file and record as supplied was not presented to the Court, several papers so prepared by her being inadvertently overlooked, which fact was also overlooked by the solicitors in the cause."

The Chancellor dismissed the petition, holding that it came too late, as his court had adjourned and he had held court in two other counties as provided by statute before said petition was filed.

Thereupon executions were issued against the complainants and the sureties on their injunction bonds.

On December 30, 1935, the complainants filed a bill of review.In addition to the original complainants, Vera Hartman, Pearl Hartman, Anice Hartman, and Dr. H. C. Hesson joined as complainants.A history of the whole proceedings in all the courts was reviewed, and it was alleged that the decrees were erroneous, and it was prayed that the bill be filed as a bill of review or in the nature of a bill of review for errors appearing on its face, in that the pleadings were not shown to Chancellor, and also be treated as a bill attacking the decree...