Jenkins v. Harris

• Decision Date: 16 February 1935
• Citation: 83 S.W.2d 562
• Parties: JENKINS et al. v. HARRIS et al.
• Court: Tennessee Supreme Court

83 S.W.2d 562

JENKINS et al. v. HARRIS et al.

Court of Appeals of Tennessee, Middle Section.

February 16, 1935.

Certiorari Denied by Supreme Court June 10, 1935.

Appeal from Chancery Court, Putnam County; E. H. Boyd, Chancellor.

Suit by C. S. Jenkins and another against C. M. Harris, Mrs. Ann. Farley, and E. A. Farley, wherein last two defendants filed a cross-bill against first defendant, Cooper Loftis, and E. Y. Gibson, and last two cross-defendants were made defendants to original bill and to cross-bill. From adverse parts of a decree, defendants, except Cooper Loftis, appeal.

Affirmed.

Worth Bryant and L. M. Bullington, both of Cookeville, for appellant Gibson.

Thompson & Haile, of Cookeville, for appellants Ann and E. A. Farley.

F. E. Harris and W. L. Cooper, both of Cookeville, for appellees Jenkins and others.

FAW, Presiding Judge.

This suit was begun by an original bill filed in the chancery court of Putnam county on November 19, 1932, by C. S. Jenkins and J. C. Darwin, as complainants, against C. M. Harris, Mrs. Ann Farley, and E. A. Farley, as defendants. All of the parties are resident citizens of Putnam county, Tenn.

The purpose of the bill was to obtain a judgment against defendant C. M. Harris for the aggregate amount of three promissory notes executed by him (less certain specified credits), with interest and attorney's fees, and for the enforcement of an alleged vendor's lien on two adjoining lots or parcels of land, described in the bill, to satisfy said judgment.

Mrs. Ann Farley and E. A. Farley were made defendants to the bill for the alleged reason that they are now in possession of said land, under title derived, through mesne conveyances, from defendant Harris.

Defendant Harris answered the bill and denied liability to the complainants on said notes or any part thereof. The defense interposed by his answer, when reduced to its essence, is that the notes in suit, although executed by him, are, in fact and in law, owned by a partnership composed of himself and the two complainants, Jenkins and Darwin; that settlement of the partnership accounts, affairs, and business has never been made between the partners; that, if he owes anything at all on said notes (which he denies), "it is to the firm of C. M. Harris, C. S. Jenkins and J. C. Darwin, a partnership," and not to the complainants C. S. Jenkins and J. C. Darwin; and that complainants are not entitled to judgment against him under their bill in this case for any sum.

Defendants Mrs. Ann Farley and E. A. Farley answered the bill and alleged that they are the owners, in fee simple, of the lands in question, and they deny that the notes sued upon in this case are liens upon said lands. They allege (with statements of dates and circumstances) that said lands were conveyed by C. M. Harris to E. Y. Gibson, and by E. Y. Gibson to Cooper Loftis, and by Cooper Loftis to these respondents (the Farleys), and that, if they are mistaken in their aforesaid denials, they are entitled to give notice to their predecessors in title, viz., Loftis, Gibson, and Harris, to come into court and defend the title of these respondents to the lands in controversy. They, therefore, file their answer as a cross-bill against said Loftis, Gibson, and Harris, and pray that said cross-defendants be required to come into court and defend this suit, and, in the event complainants Jenkins and Darwin should recover on said notes and said judgment be declared a lien upon said lands now owned by these cross-complainants, that cross-complainants have a decree against the cross-defendants for the full sum thus adjudged a lien on their said lands, and for the costs of suit.

Later, the Farleys were permitted to amend their answer and cross-bill so as to pray that the notes sued upon be declared null and void and removed as a cloud upon the title of cross-complainants to said lands.

E. Y. Gibson and Cooper Loftis filed a petition in the cause praying that they be made party defendants to the original bill and to the cross-bill of the Farleys; and it seems to have been so treated by the court and the parties. Gibson and Loftis denied that the notes sued upon in the original bill are a lien on the lands in question.

An answer was filed by the original complainants, Jenkins and Darwin, to the cross-bill of the Farleys, and a separate answer to said cross-bill was filed by C. M. Harris. These answers traversed the material allegations of said cross-bill.

The foregoing statement is a mere skeleton of the pleadings, all of which (with the exception of the answer of C. M. Harris to the cross-bill of the Farleys) contain full statements, in much detail, of the several transactions out of which this litigation arose, together with the respective contentions of the parties concerning same; but we do not deem it necessary to extend this opinion by a fuller statement of the pleadings, as they made the issues which were decided by the chancellor, and in the further statement of the case herein we will endeavor to point out these issues so far as they are involved in the rulings of the chancellor challenged by the assignments of error.

After the issues were made up by the pleadings as aforesaid, all the parties, through their counsel of record, entered into an agreement, in writing, that the cause "be heard before the court upon oral and documentary evidence as provided by Acts of 1917."

The cause was thereafter heard by the chancellor upon oral testimony of witnesses heard in open court, with documentary exhibits thereto, and the chancellor took the case under advisement and subsequently filed a "finding of facts," which also included his conclusions of law and directions for the preparation of a decree.

The defendants filed written motions, in the nature of petitions, for additional findings of facts; but these motions were overruled, and a decree was entered, pursuant to the findings and opinion of the chancellor, adjudging that complainants Jenkins and Darwin are entitled to a judgment against the defendant C. M. Harris for the whole amount of said three notes involved in this cause and filed herein, with the accrued interest thereon, less the credits appearing on said three notes, respectively, and for attorney's fees as provided in said notes.

It was thereupon decreed that complainants recover of defendant C. M. Harris the sum of $948.23, as the balance of principal and interest on said three notes less credits thereon, and the further sum of $94.83 for a reasonable attorney's fee as provided in the face of each of said notes, making an aggregate recovery of $1,043.05.

It was further decreed that defendant C. M. Harris pay two-thirds of the costs of the cause, and that the complainants Jenkins and Darwin pay one-third of the cost.

It was further decreed that a lien existed on an undivided two-thirds interest in the lands in controversy (known in the record as lots numbered 1 and 2 in the Oak Hill subdivision) to secure $948.72, and no more, of the aforesaid judgment of $1,043.05, and that, unless said sum of $948.72 was paid within 60 days from the date of the decree, the clerk and master would proceed to advertise, as required by law, and sell to the highest bidder said two-thirds undivided share or interest in said two lots (which are fully described in the decree) for one-third cash on the day of sale, and the balance in equal installments on six and twelve months' time, taking notes with good personal security for the deferred payments and also retaining a lien on the property thus sold to secure the payment of the notes so executed for the deferred payments.

The decree further provided for the reservation by the court of certain controverted questions in the case, as follows:

"The questions raised or additional finding of facts requested by the motion of the defendants Mrs. Ann Farley and E. A. Farley, as to the rights and liabilities of the defendants C. M. Harris, E. Y. Gibson, Cooper Loftis, Mrs. Ann Farley and E. A. Farley under the various general Warranty deeds executed and delivered among themselves, are reserved until after the sale of the said two-thirds undivided share or interest of said complainants C. S. Jenkins and J. C. Darwin in and to said lots Numbers One (1) and Two (2) of said Oak Hill Subdivision, as provided for in this decree, and will be adjudicated in the final decree made in this cause.

"The motion of said defendants Mrs. Ann Farley and E. A. Farley for additional finding of facts is overruled, except as above held."

The "defendants" excepted to the "action of the court and adverse rulings affecting the interests and rights of the defendants," and prayed an appeal to this court therefrom, which appeal was granted by the court and perfected by defendants C. M. Harris, Mrs. Ann Farley, E. A. Farley, and E. Y. Gibson. Cooper Loftis did not perfect his appeal.

In this court, assignments of error have been filed on behalf of Mrs. Ann Farley, E. A. Farley, and E. Y. Gibson. No assignments of error have been filed on behalf of C. M. Harris; hence his appeal will be treated as abandoned. See Rules of the Court of Appeals, Appendix to 17 Tennessee Appeals Reports, p. IV, rule No. 12; Ransom v. Carlisle, 8 Tenn. App. 448, 452.

The appellees insist, through a preliminary motion and on their brief, that the decree should be affirmed for the reason that there was no motion for a new trial below. They rely on section 10622 of the Code as requiring such motion in this case, because it was tried on oral testimony.

A case tried on oral testimony in chancery court under the Act of 1917, chapter 119, is tried according to the forms of equity, and may be reviewed de novo on appeal without a motion for a new trial. Fonville v. Gregory, 162 Tenn. 294, 36 S.W.(2d) 900; Mutual Life Insurance Co. v. Burton, 167 Tenn. 606, 614, 72 S.W.(2d) 778. The aforesaid motion of appellees for an affirmance is, therefore, overruled.

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