Hurt v. Long

• Decision Date: 11 June 1891
• Citation: 16 S.W. 968
• Court: Tennessee Supreme Court
• Parties: HURT v. LONG <I>et al.</I>

Page 968

16 S.W. 968

HURT v. LONG et al.

Supreme Court of Tennessee.

June 11, 1891.

Appeal from chancery court, Madison county.

Bill by Fannie M. Hurt, by next friend, M. B. Hurt, against T. C. Long and another, to review a decree of the supreme court. The chancellor sustained a demurrer. Complainant appeals. Affirmed.

Turley & Wright and E. L. Bullock, for

complainant. John A. Pitts and Haynes & Hays, for defendants.

SNODGRASS, J.

The bill in this case is brought to review a decree of this court rendered at its last term. Respondents, adopting the ancient practice, (Daniell, Ch. Pr. 1732; Hicks' Manual, Addenda, § 350a,) pleaded the decree sought to be reviewed, and demurred against opening the enrollments, exhibiting the original record with the plea. This defense, while unnecessarily voluminous, was not improper; but, under our practice, a demurrer would have been sufficient, as upon such demurrer the original decree and pleadings in the case in which it was pronounced would be before the court for inspection, to determine alleged errors. The chancellor sustained the demurrer and plea, and complainant appealed, and assigned errors. The decree is correct. It has been long settled that a bill of review must be filed in the court in which the decree was pronounced; (Anderson v. Bank, 5 Sneed, 661, 662;) and longer, that no bill of review will lie in this court, where, under principle announced, it could alone lie, if at all, (Cox v. Breedlove, 2 Yerg. 499; Wilson v. Wilson, 10 Yerg. 200.) In the former case, the reasoning of which was approved in the latter, it was held that, "when a cause has been re examined in the supreme court in any of the modes authorized by law, as an appeal, or an appeal from a chancellor's decision, or a bill of review of original case pending in the chancery court, (or an appeal in error or writ of error,) unless a rehearing shall be allowed during the term, the whole remedy is exhausted, unless fraud has intervened in obtaining the decree, or some new equity, which would authorize the party to file his original bill in the courts of chancery to set aside the decree." These authorities were not deemed conclusive of the question as to the right to file a bill of review in the chancery court to review a decree of the supreme court, and so that exact question was made in a case at Knoxville in 1847. It was then held that no bill of review lies in the chancery court to review a decree of the supreme court. Wallace v. Huff, Thomp. Tenn. Cas. 21. This is obviously correct, as, among the numerous methods for the correction of errors of law and fact committed in the inferior courts, the appeal is the last and final one, and it could not be on any ground assumed that this might be tried; and then all the others, practically included in this, might be tried again. This practice would be productive of intolerable evil, and would make litigation endless.

But it is insisted that no such rule applies to a minor, and that such litigant may always file a bill and set aside a decree upon showing that it was "an improper one against the minor, although the same was merely erroneous, and was not gained by fraud or collusion or surprise;" and for this a quotation from the opinion of Judge NICHOLSON in Talbot v. Provine, 7 Baxt. 509, is cited. The quotation made by Judge NICHOLSON was in reference to a point made in that case that Provine was agent for complainant when certain leases were made and confirmed, and the decrees "procured by a fraudulent concealment of the fact of such agency," and was used for no more than authority that the decrees might be set aside "for fraud in their procurement." This he shows on page 511 of the opinion referred to. So used and applied it was law. It was not intended to mean (and, if it had been, would have been erroneous) that a minor can set aside a decree for any other reason, or upon any other methods, than that of other suitors, save and except the allowance of time in favor of disability. In a case in 1 Lea, 55, (Livingston v. Noe,) the quotation made by Judge NICHOLSON was again used, and the English and other authorities sustaining it cited: and again in 12 Lea, 635, (McCown v. Moores,) on a bill filed by a minor through his guardian to review a decree for mistake, the same authorities were cited, and minors attempting to review a decree in that case were assumed to stand on different ground from other suitors in respect to their right to impeach and review a decree by original bill for mistake of fact, and a demurrer (on what grounds filed not shown) was overruled, and a mistake of fact corrected. Here, again, these authorities were cited, and assumed to govern in this state, (as it was said they had before been assumed to do in 3 Cold. 512, case of McGawck v. Bell.) These cases all ignored the origin of the rule under the English practice, when the methods of review were not so numerous and easy of resort as in this state under our statutes, including those saving in all instances the rights of persons under disability, and giving them, after removal of such disabilities, the same rights as existed without such saving in favor of persons sui juris, to correct, in the same methods as the latter, any and all errors committed against minors or others under disability; and the cases mentioned went too far in statement of the principle to be applied, under our law. They are inconsistent with a great number of other cases in this state, from Winchester v. Winchester, 1 Head 460, and others of that class, including Kindell v. Titus, 9 Heisk. 727; Ridgely v. Bennett, 13 Lea, 206, 210, and Grimstead v. Huggins, Id. 728; Kelley v. Kelley, 15 Lea, 194,—down to the last utterances of this court in similar cases, two of which (Vaccaro v. Cicallo, 89 Tenn. ___, 14 S. W. Rep. 43, and Allen v. Shanks, 90 Tenn. ___, 16 S. W. Rep. 715) expressly disavowed such principle, and held that minors attempting to review decrees stood upon the same footing, and must resort to the same methods, as other suitors.

Of like character of case with those thus limited was that of Davidson v. Bowden, 5 Sneed, 129, in which it was, among others, assumed as a ground for vacating a decree at the instance of a purchaser thereunder that the evidence did not authorize it; and this was thereafter cited as an authority to the effect that, where a minor's land had been sold in a proceeding for that purpose, any other court, or the same, in a collateral attack, could look to the evidence on which the decree was made, and declare that decree void, if the evidence did not justify it; in other words, that the jurisdiction of the chancellor to make it depended upon the evidence. This, of course, was not law; but the case gave much trouble to the profession and the court, the latter of which, without at once determining, as it should have done, that it was erroneously decided, struggled against its effect by averring that the bill by the purchaser in that case was a "direct attack" on the decree. See Judge COOPER'S head-note to the case, page 129. So, in practice it was treated as applying alone to cases of direct attack, and was never properly recognized as authority for any other. In the Kindell Case, in 9 Heisk. 727, as in many others before and since, the jurisdictional doctrine it announced was expressly repudiated; and at Nashville, in 1877, in MS. opinion in case of Wallace v. Hason, it was in express terms overruled. This, however, was perhaps unnecessary, in view of the fact that it had been impliedly overruled in so many other cases, because jurisdiction of a case could not depends upon proof. It of course depends upon parties and subject-matter, as stated in the pleading; and a court would have jurisdiction to hear a case so brought within it, and determine it, whether there was or not any proof on which to found a decree for complainant. Whether a particular decree could or should be rendered was not a jurisdictional question. The right to hear and determine which is jurisdiction, in the sense considered, is one thing; the decree to be rendered upon evidence offered is another. If the jurisdiction exists, the decree might be erroneous upon the evidence, but not void. So neither as to pleadings nor effect of proof in the original case do minors stand on any different footing when they seek to impeach it than other suitors.

A different doctrine would be a very dangerous one indeed, and of infinite trouble; for it would authorize every court, and impose upon every court, the duty of repassing on the facts and law of every case in which a minor had been involved when he impeached it as erroneously decided; and, worse than this, the second decree in the case, brought by a minor to impeach the first, would have no more sanctity than that impeached. He might file a bill to have this again tried as erroneous, and, failing in this, to review the third, and so on, until his minority terminated. Besides, no title would be secure in any case derived through a sale in which a minor was a party; for, even in case of innocent purchaser, that is a defense to be both pleaded and proven, and minority often lasts until purchaser and witness to prove it are dead, and such evidence lost. In any and all aspects it was a doctrine rejected by the good sense of the profession, and wholly unnecessary, ruinous, and inapplicable, under our system of law, broad and wise as it is, in the preservation of other full and adequate remedies for all the wrongs, and enforcement of all the rights, of minors.

Passing these questions, it is insisted that the decree is void for fraud in its procurement. If it is so alleged and proven, of course the decree is void, as all decrees are open to such questioning, and by all suitors, where such case is alleged and shown by clear, definite, specific allegation of facts and circumstances making it fraudulent, and these allegations sustained by proof. Carmichael v. Snodgrass, 6...