Higgins v. Lewis

• Decision Date: 21 December 1939
• Citation: 137 S.W.2d 308
• Parties: HIGGINS et al. v. LEWIS et ux.
• Court: Tennessee Supreme Court

137 S.W.2d 308

HIGGINS et al. v. LEWIS et ux.

Court of Appeals of Tennessee, Middle Section.

December 21, 1939.

Certiorari Denied by Supreme Court March 2, 1940.

Appeal from Chancery Court, Davidson County, Part 2; John J. Hooker, Special Chancellor.

Suit by Frank Higgins and another against Alton J. Lewis and wife. From a decretal order or judgment committing defendant named to jail until he shall comply with a decretal order theretofore made ordering and directing him to pay a certain sum into office of clerk and master within ten days, defendant named appeals.

Affirmed and cause remanded.

Jacobs H. Doyle and Andrew J. Doyle, both of Nashville, for appellant.

John H. Lechleiter, of Nashville, for appellees.

FAW, Presiding Judge.

This case is before this Court on the appeal of Alton J. Lewis, a defendant below, from a decretal order, or judgment, of the Chancery Court of Davidson County, Part Two, committing him to jail until he shall comply with a decretal order theretofore made by said Court ordering and directing him to pay into the office of the Clerk and Master, within ten days from the entry of said order, the sum of $555.45, to be held by the Clerk and Master pending the further orders of the Court in this cause, or (in the alternative), to execute a bond, with sufficient surety to be approved by the Clerk and Master, in the sum of $555.45, conditioned to abide by and perform the orders and decrees of the Court in this cause.

A resume of the pleadings and proceedings in the case from its inception will, we think, be a material aid to an understanding of the issues presented to this Court upon the appeal from the aforesaid judgment.

The original bill was filed in the Chancery Court of Davidson County, Part Two, on January 21, 1939, by Frank Higgins and Joe Frank, as complainants, against Alton J. Lewis and his wife, Mrs. Zetta I. Lewis, as defendants. All the parties are resident citizens of Davidson County, Tennessee.

It is alleged in complainants' bill, and admitted in the answer of Alton J. Lewis, that, on March 7, 1938, complainants leased from E. J. Davidson, for a period of twelve months, a "pie-wagon", with all fixtures and equipment, located at 204 Shelby Avenue, Nashville, Tennessee, and known as "Davidson's Quick Lunch", with the right or option to purchase said business, on or before the expiration of said lease contract, for the sum of twenty-eight hundred dollars; that, by reason of the fact that complainants were engaged in other business, and because the defendant, Alton J. Lewis, had been, and was at said time, employed by the said Davidson in said pie-wagon or lunchroom, complainants continued said employment, under a written contract whereby they agreed to pay said defendant a weekly salary of twenty dollars for a period of twelve months, and at the expiration of said employment contract to pay him fifteen per cent of the net profits derived from the operation of said business, which contract is in words and figures as follows:

"This agreement made by and between Frank Higgins and Joe Frank, of Nashville, Tennessee, hereinafter called Employer, and A. J. Lewis, hereinafter called Employee.

"The Employer hereby offers to employ the employee for a period of one year and the Employee hereby accepts said offer and the parties have agreed that the compensation for said employment shall be Twenty ($20.00) dollars per week, payable on Monday of each week hereafter for period beginning on the 7th day of March, 1938, and ending on the 6th day of March, 1939, and on March 6th, 1939, the Employee is to receive an additional compensation from the Employer of 15% of the net profits derived from the business during the period of time for which this contract covers. The Employee is to devote his entire time to the business and not more than twelve hours any one day.

"Witness our hands on this the 7th day of March, 1938.

                          "Frank Higgins
                          "Joe Frank, Employer
                          "Alton J. Lewis, Employee."
                

Complainants further allege that defendant Alton J. Lewis continued in their employment as aforesaid until December 24, 1938, "at which time he was discharged because of his manifest lack of interest in said business, as indicated by the fact that said business had been operated at a loss of $31.97 for the first twenty-four days of December, and its income had been reduced approximately 50% in comparison with October, but more especially because of the fact that complainants had learned that said net profits or earnings from the operation of said business were not on deposit at said Woodland Street Branch of the American National Bank, as reported by said defendant, as will be hereinafter shown."

It is further alleged in complainants' bill that, on the day that he was discharged, defendant (Alton J. Lewis) asserted that the sum of $576.37, constituting "gross earnings" of said pie-wagon business, was in the Woodland Street Branch of the American National Bank, at Nashville, to the credit of said business, but which said defendant declined to turn over to complainants; that, on investigation, it was ascertained that, although defendant had previously deposited the earnings of said business in said Bank, he had withdrawn said deposit from said Bank prior to his discharge, and that neither the "gross earnings" nor the "net profits or earnings" of said business were on deposit in said Bank, but were in the possession of said defendant Alton J. Lewis, or had been transferred by him to his wife and co-defendant, Zetta I. Lewis, and that they had refused to turn over same or any part thereof, to the complainants.

Complainants further allege in their bill, "that said defendants are wrongfully and illegally withholding from them, or have appropriated to their own use, said sum of $576.37, representing a part of the assets and/or earnings of said "Davidson's Quick Lunch"; that neither of said defendants has or had a lien on, or any interest of any nature in, said funds, but same is the absolute property of these complainants; that each of said defendants is insolvent and nothing can be made out of either of them by an execution at law; and that, unless they are required by fiat of your Honor to pay said sum forthwith into the registry of this court, said sum of money will be lost to complainants to their irreparable injury and damage."

Complainants prayed that subpoena issue requiring the defendants to answer the bill, and waived the oath of defendant Alton J. Lewis to his answer; that an injunction forthwith issue and be served upon the defendants, restraining and prohibiting them, and each of them, from withholding from complainants said sum of $576.37, or from spending, or otherwise disposing of said fund, or any part thereof, and that they be mandatorily required to forthwith pay said sum into the registry of the court to await the further orders of the court, and that upon the hearing of the cause said injunction be made perpetual; that the court, by decree, declare the complainants to be the absolute owners of said fund in the sum of $576.37, and that, if material, an accounting be had between complainants and defendants, and to this end that all necessary references to the Master be had.

Complainants then prayed for a discovery from Mrs. Zetta I. Lewis, to be made by response in her answer to a series of interrogatories propounded in the prayer of the bill; and, in conclusion, complainants prayed for general relief.

Upon a preliminary ex parte application made on the day the bill was filed, the Chancellor granted a fiat as follows:

"Upon the complainants executing an injunction bond in the sum of $250.00 conditioned as required by law, issue a Writ of Injunction restraining and prohibiting the defendants from disposing of said fund of $576.37 or any part thereof and notify the defendants that the application for the Mandatory Injunction prayed in the second paragraph of the prayer of the foregoing bill is set for hearing at twelve o'clock M. Friday, January 27, 1939."

The injunction bond was executed and the injunction writ and subpoena to answer issued, and service thereof was accepted for the defendants by their solicitor on January 21, 1939.

Defendant Zetta I. Lewis filed a "demurrer and answer" to complainants' bill, and her said answer purports to be a categorical response to the several interrogatories propounded to her by complainants in the prayer of their bill as aforesaid. Her answer amounts to a denial that she has in her possession, or under her control, the funds realized from said pie-wagon business, or any part thereof, or any funds belonging to the complainants, or in which the complainants have any interest.

Defendant Alton J. Lewis, in his answer, states that for sometime after he was employed by complainants to operate said pie-wagon, he, of his own accord, deposited the "funds of the said business" in the Woodland Street Branch of the American National Bank, but that later, and prior to his discharge, he "became scared of the statements of the complainants that they were going to take said funds and kick your defendant out in the middle of Shelby Avenue and give him nothing", and "at this time he withdrew said funds and kept same in the cash register at the place of business in the daytime and took said funds home with him at night"; that on the night of December 24, 1938, complainant Higgins came to the said place of business with a deputy sheriff, and the deputy sheriff arrested him (Alton J. Lewis) on the instructions of complainant Higgins, and while complainant Higgins "robbed the cash register of all the funds"; that he (Lewis) requested to be allowed to witness the taking of said funds, and also requested said Higgins to give him a receipt for same, which "he was denied"; that "all the funds of the business was in said register when complainant Higgins robbed said cash register, and the same was taken out by the said complainant...