Moore v. Churchwell

• Decision Date: 22 March 1944
• Parties: MOORE et al. v. CHURCHWELL et al.
• Court: Tennessee Court of Appeals

181 S.W.2d 959

27 Tenn.App. 443

MOORE et al. v. CHURCHWELL et al.

Court of Appeals of Tennessee, Western Section, at Jackson.

March 22, 1944

Certiorari Denied July 1, 1944.

Appeal from Chancery Court, Hardin County; Wayne A. Cox, Chancellor.

General creditors' suit by J. M. Moore and others against E. K Churchwell and others, wherein the assets of the debtor defendants were impounded, liquidated and the proceeds thereof distributed under the orders of the court. From a decree adjudging that the reasonable compensation of claimants' solicitors for filing the bill and impounding the assets and an allowance of $1000 as extra compensation of the clerk and master should be taxed as costs and paid out of the surplus funds in the hands of the clerk and master belonging to the defendants, and ordering a reference to the master to hear proof and report as to the amount of the fee to be allowed complainants' solicitors, and defendants appeal.

Reversed.

W. P. Moss, of Jackson, for appellants.

Ross & Ross, of Savannah, and Lowell W. Taylor, of Memphis, for appellees.

KETCHUM Judge.

This is a general creditors' suit in which the assets of the debtor defendants were impounded, liquidated, and the proceeds thereof distributed under the orders of the court with the result that the claims of all the creditors were paid in full, and a considerable surplus was left in the hands of the clerk and master belonging to the defendants. This is an appeal by the defendants from a decree adjudging that the reasonable compensation of complainants' solicitors for filing the bill and impounding the assets, and an allowance of $1000 as extra compensation of the clerk and master, should be taxed as costs and paid out of the surplus fund in the hands of the clerk and master belonging to the defendants, and ordering a reference to the master to hear proof and report as to the amount of the fee to be allowed to complainants' solicitors. This appeal was granted by the Chancellor in his discretion before the reference was had. The complainants did not oppose the granting of the appeal at that stage of the proceeding, did not except to the degree and did not move to dismiss the appeal in this court as premature. But during the argument here the question was raised by a member of the court whether this was a proper case for the granting of a discretionary appeal under the statute, Code, Sec. 9038, and therefore whether this court had jurisdiction to consider the appeal before the reference was had and the amount of the counsel's fee determined by the final decree, and counsel were requested to submit briefs on this question also, which has been done.

Appeals in equity causes, as a matter of right, lie from final decrees only, Code, Sec. 9036; Gibson's Chancery, Sec. 1265; Abbott v. Fagg, 48 Tenn. 742, 748. But in certain cases specified in Code, Sec. 9038 appeals as a matter of favor may be granted by the Chancellor in his discretion from decrees which settle the principles involved, before the entry of the final decree. The instances in which such discretionary appeals may be allowed are the following: (1) decrees ordering an account, or a sale or partition, before the account is taken or the sale or partition is made; (2) decrees overruling a demurrer; and (3) the Chancellor may allow any party to appeal from a decree which settles his right, although the case may not be disposed of as to others.

The discretion vested in the Chancellor to grant or refuse an appeal in any of the cases specified in this statute will not be reviewed in the appellate courts except for a clear and flagrant abuse of his discretion. Mr. Gibson in Section 1302 of his Suits in Chancery lays down the rule that 'The appellate courts will not reverse a decree on a question of the Chancellor's discretion, unless the exercise of such discretion was not only clearly erroneous, but oppressive.'

And our Supreme Court in construing this same statute in Crawford v. AEtna Life Insurance Co., 59 Tenn. 154, said that 'Even if it were clear that this court might for the abuse of that discretion, dismiss the appeal, it would require a very gross and palpable case of abuse to call for our interference. This, in our judgment, is not such a case.'

Nor will the appellate courts place a narrow and technical construction upon this statute in determining whether the decree appealed from falls within the express terms of the statute. It was so held in Morgan v. Layne, 165 Tenn. 513, 518, 56 S.W.2d 161, 162, in which an appeal was allowed in the discretion of the Chancellor from a decree overruling a plea to the jurisdiction. The court treated the plea to the jurisdiction 'as in effect and substance a demurrer to the jurisdiction', and the appeal was held to have been proper under that clause of the statute authorizing discretionary appeals from decrees overruling demurrers. In that case as in this, the authority of the Chancellor to grant the appeal was not challenged upon the ground that it was premature, and no error was assigned upon that ground in the Supreme Court; and the court, therefore, treated the appeal as having been properly allowed 'without ruling on this question, in view of the circumstances and the state of the pleadings.'

It is the contention of the appellants that the appeal in the present case is proper under the first clause of the statute, the applicable words of which are that 'The chancellor * * * may, in his discretion, allow an appeal from his decree in equity causes determining the principles involved and ordering an account.'

The decree appealed from certainly determined the principle involved, namely, that the extra compensation of $1000 allowed to the Clerk and Master, and the reasonable compensation of complainants' solicitors for filing the bill and impounding the assets of the defendants for the benefit of their creditors, should be 'taxed up as a part of the costs of the cause, which are adjudged against the defendants, and as such paid out of the funds in the hands of the Clerk and Master'. And the only remaining question for our consideration is whether the reference to the Master to hear proof and report to the Court as to the reasonable compensation to be allowed to complainants' solicitors may be treated as coming within that provision of the statute relating to the taking and stating of an account between the parties.

In 1 C.J.S. page 571, it is said that 'account' is a generic term, difficult to define, and having various meanings depending somewhat on the surrounding circumstances and connection in which it is used, and among other definitions is the following, approved by the courts of California, Massachusetts, Mississippi, West Virginia and South Dakota: 'It implies that one is responsible to another for moneys or other things, either on the score of contract, or of some fiduciary relation, of a public or private nature, created by law, or otherwise.' Under this definition we do not think it is unduly extending the meaning of the term as used in this statute to hold that it embraces the order of reference to ascertain and report as to the amount to be allowed to complainants' solicitors as their compensation.

In this connection it is significant that in the many cases in which this provision of this statute have been considered by our appellate courts we have been referred to and have found only two in which the Chancellor's discretion in granting the appeal was reversed, and those reversals were upon the ground that the decrees did not settle the principles involved. One of these cases is Meadows v. State, 47 Tenn. 416, 420, where the court say: 'Although it (the decree) orders an account, yet it determines no principle involved. It does not settle or declare the rights or liabilities of any of the parties. In fact, it settles nothing.'

And in Terrell v. Ingersoll, 78 Tenn. 77, 82, the court after quoting the language of the statute, say: 'A decree which simply orders an account, without settling the rights of the parties, or the principles on which the account should be taken, is not such a decree as will authorize an appeal under that section'.

And in many of the cases in which appeals have been allowed under the accounting clause of the statute, the reference was not for an accounting of mutual debit and credit items shown by book accounts or otherwise, but included general references to the Master to ascertain the amount due one party or the other according to the principles established by the decree such, for instance, as the amount of advancements made, the value of personal property, etc., for the purpose of settling an estate; Helms v. Mynatt, 46 Tenn. 215; or to ascertain the reasonable hire of slaves, the rents and profits from real estate, etc.; Allen v. McCullough, 49 Tenn. 174, 5 Am.Rep. 27; the damages allowable for a breach of covenant of title to real estate, including the cost of defending the title, including costs and attorneys' fees; Williams v. Burg, 77 Tenn. 455, 456; and a general reference embracing all matters involved in the settlement of the estate of President Andrew Johnson, including the question of the compensation of Andrew Johnson, Jr.; Matter of Johnson's Estate, 77 Tenn. 625; and a reference in a mechanic's lien case 'for an account and report' as to the amount due for work done on a building; Andrews v. Warner, 87 Tenn. 1, 9 S.W. 194. Other cases illustrating the principle are Younger v. Younger, 90 Tenn. 25, 16 S.W. 78; McNairy v. Nashville, 61 Tenn. 251; Clift v. Clift, 87 Tenn. 17, 9 S.W. 198, 360. Under all the cases cited the necessary requisite to the granting of a discretionary appeal under this clause of the statute seems to be the entry of a decree determining the principle involved as...