State for Use and Benefit of Henderson County ex rel. Hanover v. Stewart

• Citation: 46 Tenn.App. 75,326 S.W.2d 688
• Parties: STATE of Tennessee for Use and Benefit of HENDERSON COUNTY, Tennessee, ex rel. A. E. HANOVER, I. Edwin Hanover, and H. R. Hanover, and A. E. Hanover, I. Edwin Hanover, and H. R. Hanover, Individually, a Partnership Doing Business as the Southern Oil and Grease Company, v. George Tillman STEWART, Globe Indemnity Company, and Henderson County, Tennessee. 46 Tenn.App. 75, 326 S.W.2d 688
• Decision Date: 28 April 1959
• Court: Court of Appeals of Tennessee

Page 688

326 S.W.2d 688

STATE of Tennessee for Use and Benefit of HENDERSON COUNTY Tennessee, ex rel. A. E. HANOVER, I. Edwin Hanover, and H R. Hanover, and A. E. Hanover, I. Edwin Hanover, and H. R Hanover, Individually, a Partnership Doing Business as the Southern Oil and Grease Company, v. George Tillman STEWART, Globe Indemnity Company, and Henderson County, Tennessee.

46 Tenn.App. 75, 326 S.W.2d 688

Court of Appeals of Tennessee, Western Section.

April 28, 1959 Certiorari Denied by Supreme Court July 27, 1959.

[46 TENNAPP 78] Barry & Walker, Lexington, for appellants.

Joe A. Appleby and Joe C. Davis, Lexington, for appellees, A. E. Hanover et al., d/b/a Southern Oil and Grease Co.

J. Ross McKinney, Huntingdon, for George Tillman Stewart, County Supt.

Goodpasture, Carpenter, Dale & Woods, Nashville, for Globe Indemnity Co., surety on bond of George Tillman Stewart.

BEJACH, Judge.

This cause involves an appeal by Henderson County and its Board of Education from a decree for $653.87, against them and in favor of A. E. Hanover, I. Edwin Hanover, and H. R. Hanover, d/b/a Southern Oil and Grease Company, for supplies purchased by George Tillman Stewart, the County Superintendent of Schools. The Board of Education and its members were not originally made parties to this suit, but the final decree recites that complainant moved the Court for permission to amend the bill so as to add as parties the members of the County Board of Education of Henderson County, viz., Roy Martin, Berlin Grant, Chester Stephens, Dayton McDaniel, Jr., Fred Sellers, Hooper Blankenship, Aelis Bivens, James Pope Thomas, Hasting Jones, and Gene Helms; whereupon, it was [46 TENNAPP 79] agreed and stipulated 'that the bill be and stand amended so as to show said parties as members and constituting the Board of Education of Henderson County Tennessee, as defendants in the cause and subject to the orders of the Court in the cause without the necessity and expense of issuing for and serving on them formal process and that the defenses to the bill filed on behalf of Henderson County Tennessee be adopted and stand as the defenses of said Board of Education to complainants' bill.' The final decree entered in the lower court dismissed the cause as to the County Superintendent, George Tillman Stewart, and the Globe Indemnity Company, surety on his official bond, and no appeal from that decree was prayed or perfected by complainants. The assignments of error filed in this Court on behalf of appellant, Henderson County, do not specifically include the Board of Education and its members as appellants, but the appeal bond does include the Board of Education of Henderson County as a party thereto, and the motion in this Court for the issuance of the writ of certiorari on suggestion of diminution of the record also includes said Board of Education, along with Henderson County, as appellants. We think that is sufficient to entitle the Henderson County Board of Education to the benefit of any adjudication here made in favor of Henderson County.

The principal defenses made by appellants in the lower court, and the only ones material to the result reached in this Court, are that the purchases made on behalf of Henderson County and its Board of Education, for which compensation is sought in this cause, were made in violation of Chapter 635 and Chapter 642, Private Acts of 1947. Chapter 635 requires the County Superintendent to abide by the budget adopted by the Quarterly County [46 TENNAPP 80] Court. The law requiring a budget and the adoption of such budget was shown. Chapter 642, Private Acts of 1947, creates the office of County Purchasing Agent for Henderson County, and provides that 'The County Purchasing Agent shall have the exclusive power and authority to contract for and purchase all materials, and supplies, and equipment of every kind, whatsoever, for the use of every official, agent, servant, department, or agency of, or supported by, or under the control of the County Government; and no official, employee, or agent of the County or any of its departments or agencies shall contract for or purchase any such materials, supplies, or equipment', and provides further that, 'Henderson County, Tennessee, shall be liable for the payment of all purchases made under the provisions of this Act but shall not be liable for the payment of any purchases made contrary to its provisions.'

This cause was tried on oral evidence before the Chancellor; and, some of the testimony, but not all of it, is preserved in a narrative bill of exceptions filed as part of the record of this cause. A jury had been demanded, and summons for jurors had been issued on January 22, 1957, but by agreement of the parties filed in the cause January 28, 1957, the jury was waived and it was agreed that the cause be heard without the intervention of a jury on oral evidence. It may be that such waiver of the jury and agreement to try the cause on oral evidence, without including in said agreement a provision that the cause should be heard 'according to the forms of Chancery' resulted in an irregular hearing of this cause. (See Section 563, Gibson's Suits in Chancery, 5th Ed.) We consider this immaterial, however; because, even if the cause was tried irregularly, same comes to us under the provisions[46 TENNAPP 81] of Section 27-303, T.C.A., and must be treated as an equity appeal, accompanied by a presumption of the correctness of the decree in the trial court. Patterson v. Anderson Motor Co., Inc., Tenn.App., 319 S.W.2d 492, 494.

Several motions have been made in this cause which must be disposed of before we can consider the case on its merits. First, there is a motion made by the Globe Indemnity Company to dismiss the appeal as to George Tillman Stewart and Globe Indemnity Company, his surety, on the ground that, as to them, no appeal was prayed by the original complainants. At the hearing of this cause, before this Court, it was conceded in open court by counsel for all parties that this motion was well taken. Same was accordingly sustained at that time, without argument, and need not be further considered. Next, there is a motion made by appellees, A. E. Hanover, I. Edwin Hanover, and H. R. Hanover to strike the bill of exceptions and affirm the judgment of the lower court. This motion is based upon the proposition that, although the bill of exceptions contains a recital, 'This was all the evidence submitted at the hearing of the cause', nevertheless, it affirmatively appears that said bill of exceptions does not contain all of the evidence. When this motion was filed, Henderson County and the Henderson County Board of Education, through their counsel, promptly countered with a motion 'for a writ of certiorari to correct omissions in record', by which motion they undertake to suggest diminution of the record in this cause and correct same by having the Clerk and Master of the Chancery Court of Henderson County certify and send up to this Court Exhibit 1 to the cross-examination of E. W. Essary, being a copy of the purchase[46 TENNAPP 82] order form used by said Essary as purchasing agent for Henderson County, Tennessee, and Exhibit 1 to the cross-examination of witness E. L. Stewart, being a copy of a warrant in the amount of $189, countersigned by the said E. L. Stewart as County Judge of Henderson County, Tennessee. This last motion will be disposed of first. It must be denied, because what appellees are seeking to do by this motion and suggestion of diminution of the record is to correct the bill of exceptions, which is itself only a part of the record, and such correction cannot be permitted. Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394; Kennedy v. Kennedy, 84 Tenn. 736; Steele v. Davis, 52 Tenn. 75; Prudential Ins. Co. v. Sambucetti, 1 Tenn.Civ.A. 127.

In support of their motion to strike the bill of exceptions, counsel for appellees cite the cases of Pepper v. Gainesboro Telephone Co., 1 Tenn.App. 175; Gifford v. Provident Life Ins. Co., 16 Tenn.App. 21, 64 S.W.2d 64; Stockstill v. Life & Cas. Ins. Co., 16 Tenn.App. 538, 65 S.W.2d 243. The case of Pepper v. Gainesboro Telephone Co., 1 Tenn.App. 175, involved an action for trespass for cutting a tree on plaintiff's land, and the item of evidence omitted from the bill of exceptions was a deed to plaintiff's property. In disposing of this question, the Court of Appeals (Middle Section), speaking through Crownover, J., said:

'Of course, his chain of title was the best evidence of title, but in the absence of the deed this Court must presume that the trial court had sufficient evidence of title, and that parole evidence, unexcepted to, is some evidence upon which the jury predicated its verdict.

[46 TENNAPP 83] 'Where a bill of exceptions states that 'This is all the evidence', but the record shows that there was other evidence not included in the bill of exceptions, not copied into the transcript, then the judgment of the lower court must be affirmed. It is the duty of appellant to see that all the evidence is included in the bill of exceptions. If the bill of exceptions discloses the fact that material evidence (emphasis ours) heard in the lower court upon a controverted issue is not included, the judgment must be affirmed. Without the deed we cannot judge of its legal effect. See Southern Railroad Co. v. Crohm, 4 Hig. 317 [4 Tenn.Civ.A. 317]; Nolan v. Wilson, 5 Sneed 340 ; Battier v. State, 6 Cates 563 [114 Tenn. 563, 86 S.W. 711]; Hackney Groc. Co. v. Lawson, Adm., Manuscript Opinion of this Court at Knoxville, May term, 1923.

'The parole testimony of the plaintiff below that he was the owner of the lots, where it was not excepted to, in addition to his deed, is sufficient to show that the legal title was in him.' Pepper v. Gainesboro Telephone Co., 1 Tenn.App. 177-178.

In the case of Pepper v. Gainesboro Telephone Company, the sole question presented on appeal was whether or not the defendant's ...