Shelton v. Hickman

• Decision Date: 13 March 1943
• Citation: 172 S.W.2d 9,26 Tenn.App. 344
• Parties: SHELTON v. HICKMAN, Judge, et al.
• Court: Tennessee Court of Appeals

172 S.W.2d 9

26 Tenn.App. 344

SHELTON v. HICKMAN, Judge, et al.

Court of Appeals of Tennessee, Middle Section.

March 13, 1943

Certiorari Denied by Supreme Court May 29, 1943.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.

Proceedings between Amanda Shelton and Litton Hickman, judge, and others with respect to will contest. Judgment for the second named parties, and Amanda Shelton appeals in error.

Judgment affirmed.

A. V McLane, John M. Bates, and C. H. Rutherford, all of Nashville, for plaintiff in error.

Tom Ed Murray, Louis Farrell, Jr., Joseph Martin, Robert L Alexander, Jr., Noah W. Cooper, and Alvin O. West, all of Nashville, for defendant in error.

HICKERSON Judge.

This is a suit to contest the will of Lun Bolden. The jury decided the issues against the will. The Circuit Judge approved that verdict and entered judgment accordingly. Amanda Shelton, the proponent of the will, appealed in error to this Court.

Plaintiff complains in this Court that the trial court erred: (1) In refusing to sign the bill of exceptions which was tendered to him by plaintiff; (2) In refusing to charge certain special requests submitted by plaintiff; and (3) In requiring the case to be tried to a jury over the objections of plaintiff.

It is conceded by plaintiff that the purported bill of exceptions tendered by plaintiff to the trial judge for his approval and signature was not complete. It took several days to try the case on oral testimony, but none of this testimony was incorporated in the bill of exceptions. The trial court refused to sign this incomplete bill of exceptions and this refusal is assigned as error. The assignment must be overruled. The refusal of the trial judge to sign this bill of exceptions is not error in this cause. Plaintiff's remedy was by mandamus. McCallen v. Sterling, 5 Yerg. 223, 13 Tenn. 223; Miller v. Koger, 9 Humph. 231, 28 Tenn. 231; Mallon v. Tucker Manufacturing Co., 75 Lea 62, 75 Tenn. 62; Collier v. City of Memphis, 4 Tenn.App. 322; Kelly v. Cannon, 22 Tenn.App. 34, 117 S.W.2d 760.

Since there is no bill of exceptions in the record in this case, the charge of the court and the special requests submitted by plaintiff are not before us for review. They could only be preserved by a bill of exceptions. That being true this Court will presume that the charge covered the law of the case and was correct. Nighbert v. Hornsby, 100 Tenn. 82, 42 S.W. 1060; Temple v. State, 127 Tenn. 429, 155 S.W. 388; Tennessee Central R. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225; French v. State, 159 Tenn. 451, 19 S.W.2d 276; Jennings v. Riddle, 20 Tenn.App. 89, 95 S.W.2d 946; Sweeney v. Carter, 24 Tenn.App. 6, 137 S.W.2d 892.

We shall now consider the assignment that the trial court erred in requiring that this case be tried to a jury over the objections of Amanda Shelton. We quote the Code Sections which are involved, and which must be construed to determine this question:

Section 8110. "Trial by jury, verdict, etc., certified and recorded.--The issue shall be tried by a jury; and their verdict, and the judgment of the court upon the validity of the will shall be certified to the county court to be recorded together with the original will, if established."

Section 8734. "Original suits, jury demanded; when and how.--When any civil suit is originally brought in any of the courts of record, which is triable by jury, either party desiring a jury shall demand a jury in his first pleading tendering an issue triable by jury, or he shall call for the same on the first day of any term at which the suit stands for trial, and have an entry made on the trial docket that he calls for a jury; and unless such demand is made and entry thereof on the trial docket, it shall be the duty of the court to try the case without a jury."

Section 8735. "In other cases, on first day of any trial term.--In the case of all other suits, either party desiring a jury shall call for the same, on the first day of any term at which the suit stands for trial, and have an entry made on the trial docket that he calls for a jury, and unless such demand is made and entry thereof on the trial docket, it shall be the duty of the court to try the case without a jury; and if no such demand or call is made as aforesaid, and in the manner and time as aforesaid, the clerk shall place such cause on the docket to be styled the 'Nonjury Docket."'

Section 8736. "Failure to demand a jury means what; if jury is demanded, case put on jury docket.--A failure so to demand or to call for a jury shall be held, conclusively, an agreement of the parties to submit all issues and questions of fact to the decision of the judge without a jury; and, if such demand or call is so made, the clerk shall place the cause wherein the demand or call is made, upon a docket to be styled 'Jury Docket."'

In Ferris v. Bloom, 132 Tenn. 466, 178 S.W. 1112, the Court held that if a party to a will contest suit failed to demand a jury in the method provided by Shannon's Code Sections 4611-4613 (Code of 1932, Sections 8734-8736) the right to the jury was waived.

The statutes upon which these Code Sections are based are carefully considered and the rule stated in Sizer's Pritchard Law of Wills and Executors, Second Edition, 408, Section 366, where it is said: "Issue triable by jury, if Demanded. An issue devisavitvel non is in its nature peculiarly adapted to be tried by a jury, and the Code directs that it shall be so tried. But later statutes provide that in suits triable by jury, either party desiring a jury shall be entitled to it, provided he makes the demand within the time limited and in the manner prescribed by the acts. The act of 1875, ch. 4, sec. 1, requires that the party desiring a jury shall demand it in his first pleading tendering an issue triable by jury. By the act of 1889, ch. 220, sec. 1, the act of 1875 is so amended as to provide that either party shall have a jury, provided he call for it on the first day of any term at which the suit stands for trial, and have an entry made on the trial docket that he calls for a jury; and that unless such demand is made and entered on the trial docket, it shall be the duty of the court to try the case without a jury. Issues devisavitvel non are embraced by the language of the act of 1875, authorizing the demand to be made in 'the first pleading tendering an issue triable by a jury;' and a party may still demand a jury in the manner prescribed by that act. The amendatory act gives a party who has failed to make the demand in his pleading, and parties to suits appealed from justices' courts, the right to demand a jury on the first day of any trial term. The consequence is, that if a party to a contested will case demands a jury under the act of 1875, he need not renew his demand under the act of 1889; but if he fails to make the demand under the act of 1875, he is still entitled to the benefit of the act of 1889. If a jury is not demanded as provided in the statutes above referred to, then the right to trial by jury is waived and the issue is to be tried by the court without a jury."

The case of Ferris v. Bloom is cited to sustain the text.

But defendants-in-error contend that this rule has no application to the instant case: (1) Because defendants' attorneys demanded a jury in open court a few days before the first day of the term when the docket was being "sounded," and that the court sustained the motion and entered an order on the minutes of the court granting the jury, and that this was a substantial compliance with Code Sections 8734-8736. The order which was entered on this motion appeared on the minutes of the court several days after the first day of the term; (2) Since the enactment of the Code of 1932 the reasoning of the court in the case of Ferris v. Bloom, supra, would not apply in the construction of the statutes involved in the determination of the question here presented; but to the contrary, a proper construction of the 1932 Code Sections, all of which were enacted as one Act of the Legislature, would not require the parties to a will contest suit to demand a jury as provided by Code Sections 8734-8736; and that their failure to demand a jury as provided by these Code Sections would not operate as a waiver of their right to a jury trial; and (3) That if the court did commit error in requiring the jury trial, plaintiff has failed to carry the burden in this Court of showing that such error affirmatively affected the result of the trial as required by Code Section 10654.

The first day of the trial term of the court in this cause was February 2, 1942. On February 10, 1942, the following order was entered upon the minutes of the court:

"Upon due consideration of the motion by one of the counsel for defendants; it appears that on January 24, 1942, when the Presiding Judge was making up a trial docket for the February Term of court, said counsel advised the court that the above styled case was on the Non Jury docket. He requested that it be placed upon the Jury docket as it was a contested will case and it was imperative that the issues be tried by a jury. To this request the court agreed.

"It is therefore ordered that said case be placed upon the Jury docket and set for trial under the rules of court governing the trial and disposition of Jury cases.

"To the foregoing action of the court, the proponent excepts."

This method of demanding and acquiring a jury to try the case was not in compliance with the Code. The method for demanding a jury as set forth in the Code is imperative and a litigant who fails to substantially follow that method of demanding a jury conclusively waives his right to a jury. The method prescribed by the Code is that the party who desires a...