Morrell v. Republic Fire Ins. Co. of Pittsburg

• Decision Date: 30 November 1934
• Citation: 76 S.W.2d 317
• Parties: MORRELL et ux. v. REPUBLIC FIRE INS. CO. OF PITTSBURG.
• Court: Tennessee Supreme Court

76 S.W.2d 317

MORRELL et ux. v.REPUBLIC FIRE INS. CO. OF PITTSBURG.

Supreme Court of Tennessee.

November 30, 1934.

Appeal from Chancery Court, Washington County; S. E. Miller, Chancellor.

Suit by W. H. Morrell and wife against the Republic Fire Insurance Company of Pittsburg.Decree of chancellor for complainants was reversed and case remanded by the Court of Appeals, and complainants bring certiorari.

Decree of the Court of Appeals reversed, and decree of chancellor affirmed.

J. R. Gardner and Simmonds & Bowman, all of Johnson City, for appellant.

Barnes & Lewis and Chase & Neel, all of Johnson City, for appellees.

SWIGGART, Justice.

This case is before us by writ of certiorari to the Court of Appeals, heretofore granted on the petition and assignments of error of the complainants, Morrell and wife.No petition nor assignments of error were filed by the defendant.

The suit is to recover on a contract of fire insurance.The defendant answered that the property destroyed by fire was not the property described in the contract.The issue of fact thus tendered was heard by the chancellor upon oral testimony, by consent of the parties, but without written agreement.The chancellor found for the complainants, and the defendant appealed to the Court of Appeals.

The Court of Appeals ruled that the bill of exceptions was defective and incomplete and struck it from the record.The hearing being de novo, under Code, § 10622, that court ruled that, without a proper bill of exceptions, it could only dismiss the suit, or remand it for a new trial under Code, § 9054.It accordingly reversed the decree of the chancellor and remanded the case to the chancery court for a new trial.

In this ruling we think the Court of Appeals erred.The case was tried in the chancery court according to the forms of law and not according to the forms of chancery.Trice v. McGill, 158 Tenn. 394, 13 S.W.(2d) 49.The review in the Court of Appeals was therefore as a law case upon appeal in the nature of a writ of error.Fonville v. Gregory, 162 Tenn. 294, 301, 36 S.W.(2d) 900;Broch v. Broch, 164 Tenn. 219, 47 S.W.(2d) 84.

We cannot assent to the contention that a judgment or decree, from which an appeal in the nature of a writ of error is granted, must be reversed if the appellant fails to file a bill of exceptions.No such revolutionary effect can be given to Code, § 10622, originally enacted as Acts 1929, c. 94, § 1.This statute directs that, if the trial judge heard the case without a jury, the hearing in the Court of Appeals shall be de novo, but it also prescribes that in the cases to which it applies there shall be a presumption as to the correctness of the judgment or decree of the lower court, "unless the evidence preponderates against the judgment or decree."It also prescribes that, if the case is tried on oral testimony, the transcript "must contain a motion for new trial and bill of exceptions"; this provision for motion for new trial being limited by construction to cases in which a motion for a new trial is otherwise required.

This statute has given rise to considerable confusion, as indicated in our...