FAW, Presiding Judge.
In this cause W. F. Brevard, J. F. Adams, Mortie Bragg and B. M. Downing, defendants below, have appealed to this Court from a decree of the Chancellor granting a recovery in the sum of $2,660.72 and certain costs against them and in favor of D. D. Robertson, Receiver of the First State Bank of Woodbury, Tennessee.
At the threshold of the investigation of this case we are presented with a motion on behalf of the appellee to dismiss the appeal because the case was heard on oral testimony and there was no motion for a new trial below.
The absence of a motion for a new trial, where such motion is necessary to a review of the evidence by the appellate court, does not work a dismissal of the appeal, but (if there is no error assigned on the technical record) ordinarily requires an affirmance of the decree or
judgment. However, we have treated the appellee's motion in this case as a motion to affirm the decree, for it appears that there was no motion for a new trial below, and if the case was one in which such motion was essential, this Court would, of its own motion, decline to review the evidence, although the evidence was preserved by bill of exceptions.
Pertinent to the question thus presented, the record discloses the following facts:
In an answer and crossbill filed by the appealing defendants (together with other defendants) a jury was demanded, but before, or at the time, the case was called for hearing, a written agreement, signed by counsel for all the parties and the guardian ad litem for the minor defendants, was filed in the cause, which agreement is in these words:
"In this cause, it is agreed by and between Counsel for the Complainant, Counsel for the Defendants and the Guardian ad litem, that this cause may be tried by the Chancellor upon the record and upon oral testimony."
It is also recited in the final decree of the Chancery Court that the cause was "heard on oral testimony by written agreement of counsel filed in the record, a jury having been demanded in the answer, but the same being waived by the parties."
We think the foregoing written agreement filed in the cause brings the case within the purview of the Act of 1917, chapter 119, carried into the Code as Section 10564, which provides that: "All causes instituted or brought in the chancery court may be heard and tried upon the oral testimony of witnesses introduced in open court upon the agreement or consent of the parties to such suit expressed in writing and filed in the cause to be so heard and tried, which written consent may be embodied in the pleadings or by separate agreements filed in the cause at any time before, or at the time when, any cause may be called for hearing."
It is well settled that a case tried on oral testimony in the Chancery Court in conformity with the statute above quoted, is tried according to the forms of chancery practice, and the evidence, if preserved by bill of exceptions, may be reviewed on appeal without a motion for a new trial. Watkins v. Sedberry, 155 Tenn. 148, 154, 290 S.W. 970; Trice v. McGill, 158 Tenn. 394, 397, 13 S.W.2d 49; Fonville v. Gregory, 162 Tenn. 294, 36 S.W.2d 900; Broch v. Broch, 164 Tenn. 219, 224, 47 S. W.2d 84; Mutual Life Insurance Company v. Burton, 167 Tenn. 606, 615, 72 S.W.2d 778; Jenkins v. Harris, 19 Tenn. App. 113, 118, 83 S.W.2d 562; Federal Land Bank v. Robertson, Superintendent etc., 20 Tenn.App. 58, 62, 95 S.W.2d 317, 319; Gibson's Suits in Chancery, 4th. Ed., section 547i. The appellee's motion is overruled.
The Chancellor's written findings filed in the cause contain a succinct and orderly statement of the issues made by the pleadings, and his findings upon the disputed questions of fact and law arising on the record; hence we will quote his findings as a basis for the consideration of the appellants' assignments of error. The Chancellor's findings are as follows:
"The First State Bank of Woodbury having become insolvent, closed in 1923, and ceased to do business, and was placed in the hands of S. S. McConnell, then Superintendent of Banks of the State of Tennessee, and its business is being liquidated in this Court. The records in said cause were destroyed by fire when the courthouse at Woodbury, Tennessee burned in November 1934.
"During the process of liquidation of said Bank its Receiver deposited his funds in the Cannon County Banking Company, the same having been designated as a depository for funds as provided by law, and the Cannon County Banking Company became insolvent and closed its doors on November 15, 1930, and its affairs have been liquidated in this court, and the cause is not now pending in this court.
"When the Cannon County Banking Company closed its doors and went into the hands of receivership, the Receiver of the First State Bank of Woodbury, Tennessee, had on deposit with said Cannon County Banking Company the sum of $5,834.88. The Receiver of the First State Bank received from Cannon County Banking Company as dividends from time to time the sum of $3,174.16, leaving a balance of $2,660.72. The Cannon County Banking Company paid a dividend of about fifty-four per cent to its depositors.
"As provided by law, and especially Section 5989 of the 1932 Code of Tennessee, the Receiver of the First State Bank took from the Cannon County Banking Company the bond sued on in this case, which
is filed in the record as Exhibit `A' to the testimony of Hallum Goodloe.
"The defendants in this suit, except the widow of G. S. Smith, and his children, executed said bond, which is dated November 30, 1925, and is in the words and figures as follows:
"`$10,000.00. Know all men by these presents: That we, Cannon County Banking Company of Woodbury, Tennessee, as Principal, and G. S. Smith, W. F. Brevard, J. F. Adams, Mortie Bragg, B. M. Downing, Sureties, acknowledge ourselves indebted to S. S. McConnell, Superintendent of Banks for the State of Tennessee, and his successor in office, in the sum of Ten Thousand & No/100 lawful money of the United States of America, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents.
"`Witness our signatures this the 30 day of November, 1925.
"`The condition of the said obligation is as follows:
"`The Superintendent of Banks of the State of Tennessee, in his capacity as receiver of the First State Bank of Woodbury, Tennessee, has instructed his agent to deposit funds from time to time in the said Cannon County Banking Company of Woodbury, Tennessee.
"`Now therefore, if the said Cannon County Banking Company of Woodbury, Tennessee, shall faithfully pay over and account for all money that may be received by it from time to time in connection with the liquidation of the First State Bank, Woodbury, Tennessee, then this obligation shall be void; otherwise to remain in full force and effect.
"`Cannon County Banking Company
Woodbury, Tenn
"`By S. B. Hawkins, President
"`G. S. Smith, Cashier
"`W. F. Brevard, Surety
"`J. F. Adams, Surety
"`Mortie Bragg, Surety
"`B. M. Downing, Surety
"`G. S. Smith, Surety.'
"The estate of G. S. Smith has been fully administered and the statute of limitations of eighteen months had run after this cause of action accrued and before suit was instituted thereon, and this suit against the estate and against the heirs of G. S. Smith is barred, and the bill as to them is dismissed. G. S. Smith died in 1932, and the petition or bill in this cause was not filed until August 12, 1935. The complainant will pay all the costs incident to making them defendants to this cause, including a guardian ad litem fee to Hon. Hoyte Bryson in the amount of $100.00.
"The defendants filed a plea in abatement on August 30, 1935, to the petition filed in this cause, the substance of which plea was that there was not pending in the Chancery Court at Woodbury at the time of the filing of the petition any cause styled S. S. McConnell, State Superintendent of Banks against the First State Bank; that the records had been destroyed in the courthouse fire and had not been supplied or replaced as required by law. At a former term of the court the plea was overruled with leave to rely on it at the hearing, and on the hearing of this cause when the plea was again called up the court was of the opinion that the complainant had the right to maintain this suit as a petition in said cause, or if not as an original bill, and counsel for complainant requested leave of the Court to file same as an original bill if it was the opinion of the Court same was necessary. The cause was permitted to proceed to judgment as a petition in the original cause.
"The Court finds that at the time the bond herein sued on was executed and delivered to Mr. H. S. Grigsby, who was at that time representing the State Superintendent of Banks in this matter, the defendants herein executed the same honestly believing that the deposit of the receivership fund in question would be a preferred claim against the assets of the Cannon County Banking Company.
"The Court further finds that Mr. H. S. Grigsby told some of the defendants, and possibly all of them, that it was his opinion that there would be no...
