McCormick v. Phillips

• Decision Date: 09 July 1918
• Citation: McCormick v. Phillips, 204 S.W. 636, 140 Tenn. 268 (Tenn. 1918)
• Parties: MCCORMICK ET UX. v. PHILLIPS.
• Court: Tennessee Supreme Court

204 S.W. 636

140 Tenn. 268

MCCORMICK ET UX. v. PHILLIPS.

Supreme Court of Tennessee.

July 9, 1918

Certiorari to Court of Civil Appeals.

Bill by W. S. McCormick and wife against J. A. Phillips.Decree entered for complainants, and defendant appealed.Subsequent to appeal defendant in chancery court was adjudged in contempt for violation of injunction, which decree upon appeal was affirmed by the Court of Civil Appeals, and defendant brings certiorari.Judgment of Court of Civil Appeals reversed, and contempt proceedings dismissed.

R. Lee Bartels, of Memphis, for complainants.

L. T Fitzhugh and Edgar Webster, both of Memphis, for defendant.

NEIL C.J.

It appears that prior to the 26th of October, 1917, there was filed in the chancery court of Shelby county, a bill by complainants against defendant to enjoin him from erecting a certain private levee on which he contemplated constructing a road leading from his farm to a public road mentioned in the pleadings, on the ground that the erection of the levee would cause an overflow of the complainant's land.A fiat was granted by the chancellor, and an injunction issued of a temporary nature, restraining the defendant, Phillips, from proceeding with the building of the levee, and this injunction was afterwards, by the decree of the court in that case, in a modified form, made perpetual.This decree was entered on August 8, 1917.An appeal bond was filed on September 6, 1917, but there was no prayer for, or grant of an appeal.On November 15, 1917, a nunc pro tunc order was entered as of date August 11, 1917, showing the granting of an appeal.The defendant was adjudged guilty of contempt on October 26, 1917, for violation of the injunction order contained in the final decree which, as stated, modified the preliminary injunction in certain particulars not necessary to be stated, but was allowed to purge himself by restoring the situation as it stood before his violation of the injunction within 20 days after the 26th of October.After the expiration of the 20 days, and in the month of December 1917, it was represented to the chancellor, by petition, that the defendant had not complied with the order granting him time to restore the situation, and such proceedings were had as that an order was finally entered, directing that he should be imprisoned until he should comply, or should give the bond therein described.From this judgment an appeal was prayed and granted to the Court of Civil Appeals.

Pending the contempt proceedings in the chancery courtthe defendant interposed a plea to the chancellor's jurisdiction, on the ground that, the decree in the original cause having been appealed from, the chancellor was denuded of further jurisdiction, and therefore there could be no contempt proceedings instituted against defendant.

The Court of Civil Appeals held that the chancellor had jurisdiction to entertain contempt proceedings against the defendant for violation of the injunction contained in the decree in the principal case appealed from, notwithstanding the appeal, and so affirmed the chancellor's decree.The case was then brought to this court by the writ of certiorari, and it is now here for our decision.

We are of the opinion that the Court of Civil Appeals was in error.The rule long established in this state is that a broad appeal in chancery vacates the decree of the chancellor, and this necessarily involves all orders contained in such final decree, whether for injunction or otherwise.Furber v Carter, 2 Sneed(34 Tenn.) 1;Pond v. Trigg, 5 Heisk.(52 Tenn.) 532, 536;Smith v. Holmes,12 Heisk. (59 Tenn.) 466;Turley v. Turley,85 Tenn. 251, 1 S.W. 891;Vaccaro v. Cicalla,89 Tenn. 63, 14 S.W. 43;Moses v. Grainger,106 Tenn. 7, 58 S.W. 1067, 53 L. R. A. 857.And seeDavis v. Jones, 3 Head(40 Tenn.) 603;Enochs v. Wilson, 11 Lea (79 Tenn.) 228;Loftis v. Loftis,94 Tenn. 231, 237, 28 S.W. 1091;Fort v. Fort,118 Tenn. 103, 111, 112, 101 S.W. 433, 11 Ann. Cas. 964.

It appears that a different rule obtains in some other states.Barnes v. Typographical Union, etc.,232 Ill. 40283 N.E. 932, 14 L. R. A. (N. S.) 1150, 122 Am. St. Rep. 129;State v. Harness,42 W.Va. 414, 26 S.E. 270;Powhatan Coal & Coke Co. v. Ritz,60 W.Va. 395, 56 S.E. 257, 9 L. R. A. (N. S.) 1225;Gates v. McDaniel, 4 Stew. & P.(Ala.) 59;Id., 3 Port. 356.In other jurisdictions it is held that the power of the lower court is lost by the appeal.Kentucky & I. Bridge Co. v. Krieger,91 Ky. 625, 16 S.W. 824;State ex rel. Carroll v. Campbell,25 Mo.App. 635;Wilkinson v. Dunkley-Williams Co.,141 Mich. 409, 104 N.W. 772, 7 Ann. Cas. 40;Pennsylvania R. Co. v. National Docks & N. J. Junction Connecting R. Co.,54 N. J. Eq. 647, 35 A. 433;State ex rel. Mason v. Harper's Ferry Bridge Co., 16 W.Va. 864;Menuez v. Grimes Candy Co.,77 Ohio St. 386, 83 N.E. 82, 11 Ann. Cas. 1037.In the federal courts the practice is to enter an order retaining control of the injunction in the lower court, but it seems the appellate court also has jurisdiction in such a case.Merrimac River Savings Bank v. City of Clay Center,219 U.S. 527, 31 S.Ct. 295, 55 L.Ed. 320, Ann. Cas. 1912A, 513.In Tennessee an order retaining jurisdiction in the lower court cannot be made.It was attempted in ...