Melhorn v. Melhorn

• Decision Date: 26 July 1961
• Citation: 12 McCanless 678,348 S.W.2d 319,208 Tenn. 678
• Court: Tennessee Supreme Court
• Parties: Vella MELHORN v. Lee MELHORN. Vella MELHORN, Adm'x v. Walter MELHORN, Jr. 12 McCanless 678, 208 Tenn. 678, 348 S.W.2d 319

Page 319

348 S.W.2d 319

Vella MELHORN v. Lee MELHORN.

Vella MELHORN, Adm'x v. Walter MELHORN, Jr.

12 McCanless 678, 208 Tenn. 678, 348 S.W.2d 319

Supreme Court of Tennessee.

July 26, 1961.

George H. Buxton, Jr., Harry L. Loyce, Wartburg, for plaintiff.

Ladd & Qualls, Harriman, for defendants.

FELTS, Justice.

By agreement of the parties, these two cases were heard together upon oral testimony before the Chancellor 'sitting as a jury.' He dismissed the suits. Complainant appealed in error, and the Court of Appeals affirmed the dismissal. We granted certiorari and the cases have been heard here.

In the first case, complainant, as administratrix of John Melhorn, deceased, sued Lee Melhorn for $413, which was in deceased's billfold at his death and used by Lee Melhorn in part payment of the funeral expenses, and for $2,500 on deposit in the First National Bank of Harriman in the joint account of 'John or Lee Melhorn.'

In the second case, complainant, as administratrix of John Melhorn, deceased, sued Walter Melhorn, Jr., for $1,548 on deposit in the First National Bank of Rockwood in a joint savings account, evidenced by a passbook in the names of 'John Melhorn or Walter Melhorn, Jr.'

Lee Melhorn admitted in his answer that he applied the $413 on deceased's funeral expenses. This was done before any administrator was appointed. The balance of the funeral expense was $1,077.34, which was paid by defendants Lee Melhorn and Walter Melhorn, Jr. They also paid $386.24 for a monument placed at the grave of deceased.

Defendant Lee Melhorn admitted in his answer the amount of the joint account in the Harriman Bank, and stated that this deposit was made in accord with the intention of the deceased to create a joint ownership in the fund with the right in the survivor to take it. Lee Melhorn himself put $600 into this account. The signature card signed by both John Melhorn and Lee Melhorn contained an agreement as follows:

'Joint Account

'John or Lee Melhorn

'The undersigned joint depositors hereby agree each with the other and with the First National Bank in Harriman, Tennessee, that all sums now on deposit or heretofore or hereafter deposited by either or both of said joint depositors with said bank to their credit as such joint depositors with all accumulations thereon, are and shall be owned by them jointly, WITH RIGHT OF SURVIVORSHIP, and be subject to the check or receipt of either of them or the survivor of them * * *.'

Walter Melhorn, Jr., admitted in his answer that there was opened in the Rockwood Bank a joint savings account in the sum of $1,500 in the name of 'John or Walter Melhorn, Jr.', as shown by a passbook which had to be presented before any withdrawal could be made. It was further stated that John Melhorn intended, by this deposit, to create a joint ownership in the money with the right in the survivor to take it; and that he gave this passbook to Walter Melhorn, Jr. to keep for that purpose.

In the trial before the Chancellor, at the close of the evidence for complainant, defendants moved the court to dismiss the suits for want of sufficient proof. The Chancellor overruled this motion; defendants introduced their evidence; and, as stated, the Chancellor found the proof supported the defenses set up in the answers and dismissed the bills. Complainant's motion for a new trial was overruled, she appealed in error, with the result above stated.

In the Court of Appeals complainant assigned error upon the Chancellor's action in allowing defendants to introduce any proof after he overruled their motion to dismiss at the close of complainant's proof. It is urged that it is not correct practice in equity to entertain such a motion until the close of all the evidence; and that when defendants made this motion they should have been treated as having closed the case, and should not have been permitted to offer any proof.

For this insistence complainant relies on cases of the Court of Appeals which do declare this to be the correct rule of practice in equity cases in this state. Humphreys v. Humphreys, 39 Tenn.App. 99, 127-128, 281 S.W.2d 270, 283-284; Dyersburg Production Credit Ass'n v. McGuire et al., 40 Tenn.App. 99, 289 S.W.2d 540-541; Patterson v. Anderson Motor Co., Tenn.App., 319 S.W.2d 492.

In the case before us, however, the Court of Appeals quoted Gibson's Suits in Chancery (5th ed.), sec. 567, to the effect that there 'seems to be no prohibition' against a defendant, at the close of complainant's presentation, 'moving to dismiss or from demurring to the evidence,' and that after such a motion is overruled, the defendant may put on his evidence, and renew his motion to dismiss at the close of all the evidence.

And after quoting this statement, the Court of Appeals expressed the opinion that Gibson stated the better rule, and the court declined to follow the rule stated in the cases above cited, but expressed the hope that we might clarify this question of procedure.

We do not reach that question, however, in this case, because it was tried by the Chancellor 'sitting as a jury.' The rule of equity practice above referred to does not apply to jury cases, but only to equity cases; i. e., cases tried regularly according to the forms of chancery, which are reviewable by appeal (T.C.A. Sec. 27-301), or cases tried irregularly by the Chancellor and reviewable by appeal as provided by T.C.A. Sec. 27-303.

In a chancery case where, as here, the parties, having a right to a jury trial, waive such right, and agree that the case be heard by the Chancellor 'sitting as a jury,' the effect is to substitute the Chancellor for the jury, and to give his findings the same force as the verdict of a jury. Such findings are treated as a jury verdict and are reviewable only by appeal in...