Simmons v. Leonard

• Decision Date: 14 February 1891
• Parties: SIMMONS et al. v. LEONARD et al.
• Court: Tennessee Supreme Court

15 S.W. 444

89 Tenn. 622

SIMMONS et al. v. LEONARD et al.

Supreme Court of Tennessee.

February 14, 1891

Error to circuit court, Marshall county; ROBERT CANTRELL, Judge.

W. N Cowden, W. W. Walker, and P. C. Smithson, for plaintiffs in error.

Jones Ewing & Lewis, for defendants in error.

DICKINSON J.

Plaintiffs in error filed a bill in the chancery court of Marshall county against defendants in error, which embraced matters of equitable jurisdiction, and also asked that an issue of devisa vit vel non be tried in the chancery court in respect of a writing which had been proven in common form as the will of Margaret Simmons. The chancellor retained the bill as to certain matters, but, being of the opinion that he had no power to try this issue, directed the parties to take appropriate steps to secure such a trial in the circuit court. This cause was brought to the circuit court from the county court by certiorari, which was dismissed by the circuit judge on the ground that the chancery court had jurisdiction to fully try and dispose of this issue. Defendants resisted the trial in the chancery court on the ground that it did not have jurisdiction, and in the circuit court on the ground that the chancery court did have jurisdiction, and was successful in both tribunals. The result is that plaintiffs have been denied a trial altogether.

In John v. Tate, 7 Humph. 392, it appears that the chancellor submitted in his own court an issue to a jury to try the question whether a certain paper was a will. The supreme court, while holding that the parties who made the application were estopped by the proceeding, reserved the question whether the chancellor had power to submit an issue of devisavit vel non to be tried by a jury in this court. In Harrison v. Guion, 4 Lea, 531, this question of jurisdiction was directly passed upon. The chancellor awarded such an issue, and upon an appeal from his decree it was held that the chancery court had no jurisdiction to try such an issue, and that the jurisdiction of the circuit court was exclusive. That case was decided in 1890. It originated before the passage of the act of 1877, c 97, which conferred on the chancery court concurrent jurisdiction with the circuit court of all civil actions triable at law, except for injuries to person, property, or character involving unliquidated damages, and consequently was decided without reference to that statute. It is insisted that this act conferred upon the chancery court the power to try the issue of devisavit vel non, inasmuch as it is a civil action triable at law, and does not fall within the exceptions expressly named. This statute has been liberally construed, and has been held to cover cases of mandamus, ejectment, money lost at gaming, covenants running with lands, claims for damages on official bonds claims for damages on bonds of clerks for taking insufficient bond, suits for mistake of public surveyor, and for conversion. Hawkins v. Kercheval, 10 Lea. 542; Frazier v. Browning, 11 Lea, 253; McGrew v. City Produce Exchange, 85 Tenn. 572, 4 S.W. 38; Williams v. Burg, 9 Lea, 455; Glenn v. Moore, 11 Lea 256; State v. Keller, Id. 399; Manufacturing Co. v. Moses, 15 Lea, 300. All of these suits could have been brought by the parties directly in the circuit court in the first instance, and without any preliminary steps in any other court. The circuit court has jurisdiction of causes tried before magistrates, on appeal, which lies to that court alone, and to try de novo, on appeal, provided for to that court alone, controversies relative to laying off, discontinuing, or establishing any public road or ferry by the county court, and of condemnation of lands levied upon by virtue of an execution or attachment issuing from a magistrate. In the matter of the contest of wills, not only is the circuit court clothed with exclusive jurisdiction, (Code, § 4227,) but it can be acquired by that court only in one way, and that is by a certificate from the county court, which is the custodian of the will and has original jurisdiction of its probate, that its validity is contested. It is also provided that...