Stockley v. Cissna

• Decision Date: 07 September 1907
• Parties: STOCKLEY v. CISSNA ET AL.
• Court: Tennessee Supreme Court

104 S.W. 792

119 Tenn. 135

STOCKLEY v. CISSNA ET AL.

Supreme Court of Tennessee.

September 7, 1907

Appeal from Chancery Court, Tipton County; John S. Cooper Chancellor.

Forcible entry and detainer action by H. W. Stockley against W. A Cissna and others. From a decree for complainant, defendants appeal. Partly affirmed, and partly reversed.

Caruthers Ewing, for appellant Cissna. R. G. Brown, for appellant Muncie Pulp Co. G. J. McSpadden, for appellee.

McALISTER J.

This is an action of forcible entry and detainer. The object of the bill is to recover the possession of two tracts of land situated in Tipton county, Tenn. These tracts adjoin, but are described in the bill separately, for the reason that complainant's title and right of possession to each is derived from a different source. The smaller of the two tracts comprises about 131 acres, and is embraced in a tract of 2,000 acres originally granted in the year 1824 by the state of Tennessee to Simon Huddleston. The larger tract comprising about 1,050 acres, adjoins the smaller tract on the north, and was originally granted by the state of Tennessee to John Trigg. The bill alleged that while complainant was in the quiet and peaceable possession of the two tracts of land, fully described in the bill by metes and bounds, the defendants had ousted him from possession, and had cut and removed from the land timber to the value of $20,000, as he is informed and believes. Complainant prayed to be restored to the possession of the land and for a decree against the defendants for the value of the timber appropriated. On the hearing the chancellor pronounced a decree in favor of complainant, adjudging him entitled to the possession of the land in controversy, and ordering a reference to ascertain the amount of timber cut and removed from the land, and to ascertain the value thereof. The chancellor permitted the defendants to appeal from said decree, and the cause is now before this court, mainly on the assignments of error on behalf of the defendant W. A. Cissna.

We shall first notice the error assigned on the refusal of the chancellor to order a removal of the cause on the petition of the defendant to the Circuit Court of the United States for the Western Division of the Western District of Tennessee. The bill was filed June 10, 1903, and publication ordered for the nonresident defendants to make their appearance in the cause on or before the first Monday in August, 1903, and make defense to the bill. The regular terms of court convened on the first Mondays in June and December. It thus appears that the first term of the court after the bill was filed was held on the first Monday in December; but, as already seen, the publication for the nonresident defendants required them to enter appearance on a rule day in August, 1903. It appears that on October 17, 1903, the defendants filed their petition for a removal of the cause, and a proper bond was tendered with the petition. On November 17, 1903, complainant filed a motion to dismiss the petition for removal to the United States court on the ground that it was filed after the time defendants had the right to file it under the act of Congress. It thus appears that the ground upon which the petition for removal was denied was that it was filed unseasonably. Thereupon, on the 19th day of December, 1903, defendants applied for leave to file an amended petition for removal, which was disallowed by the court. The petition, proceedings, and evidence touching the application for the removal were preserved of record by a bill of exceptions. Defendant Cissna assigns the following exceptions to the action of the court in refusing his petition for removal:

"(1) Said petition was filed in time.

(2) The petition as amended, and which the court declined to allow to be filed, was filed after an amendment of the bill was made which made the suit an action in ejectment, and therefore the defendants were entitled to a removal.

(3) No motion was made to dismiss, because the petition was not filed in time."

We find, however, that an examination of these questions is unnecessary, since the record shows that as a matter of fact the cause was removed to the United States Circuit Court, and by that court remanded to the state court. It appears from the record that, after the refusal of the chancellor to order a removal, counsel procured from the clerk and master a certified copy of the record, and filed it, together with a good and sufficient bond, in the United States Circuit Court at Memphis. This action operated, under the act of Congress and the federal decisions, as a removal of the cause. It further appears that counsel for complainant appeared in the federal court and moved to remand the cause to the chancery court of Tipton county. After argument of counsel and consideration by the court, the cause was ordered to be remanded to the chancery court of Tipton county, which was accordingly done on the 7th day of April, 1905. We think it very plain that the defendants had the full benefit of their petition for removal by the course adopted in filing a certified copy of the record in the United States court. Martin v. Baltimore & Ohio R. R., 151 U.S. 675, 14 S.Ct. 533, 38 L.Ed. 311.

The action of the United States Circuit Court on the removal of the cause is, of course, final and conclusive on this court.

It is also assigned as error that the chancellor refused to grant defendants' application for a continuance at the June term, 1905. It appears that the plea in abatement filed on behalf of defendant Cissna averred that the lands in controversy were situated in the state of Arkansas, and not in the state of Tennessee. Complainant joined issue on the plea in abatement. It appears that at the June term, 1904, the cause was continued by consent until the next December term of the court. The cause was again continued at the December term, 1904, to the June term, 1905, when it was called for hearing on the plea in abatement. Counsel for defendant thereupon made application for a continuance, supported by affidavit. It is the established practice of this court not to interfere with the discretionary action of the trial court on the subject of continuance, unless it appears there has been great abuse of its discretion. Womack v. State, 6 Lea, 152; Todd v. Wiley, 3 Humph. 576; Rhea v. State, 10 Yerg. 258; Fox v. State, 111 Tenn. 158, 76 S.W. 815; Railroad v. Voss, 109 Tenn. 722, 72 S.W. 983.

It appears that the plea in abatement was filed January 16, 1904, and the replication on February 22, 1904. The burden of proof to sustain this plea, of course, devolved upon the defendant, and under the rules of chancery practice four months were allowed defendants in which to take their proof, and the complainant was entitled to two months thereafter in which to take his proof. At the December term, 1904, defendants had not taken their proof, and when the cause was called a continuance was asked, which was supported by affidavit. Continuance was allowed by the chancellor. At the June term, 1905, defendants had still failed to take their proof in support of the plea in abatement, and again requested a continuance. The court overruled the application, and, in view of the facts already stated, we are unable to perceive wherein the chancellor was guilty of an abuse of the discretion allowed him in such matters. The chancellor then, at the June term, 1905, proceeded to hear this plea in abatement, and overruled the same, adjudging that the lands in controversy were not in the state of Arkansas, but were situated in the state of Tennessee. At the same term, to wit, on June 20, 1905, the defendants filed their answer, in which they denied all the material allegations of the bill. Defendants embodied in their answer a plea of res adjudicata, averring the present action to be barred by the suit of H. W. Stockley v. W. A. Cissna, tried and determined in the United States Circuit Court.

We shall first consider the defendants' assignment of error on the action of the Chancellor in overruling the plea of res adjudicata. That plea averred that the present suit was barred by a decree pronounced by the United States Circuit Court for the Western Division of the state of Tennessee, and affirmed on writ of error by the Circuit Court of Appeals (119 F. 812, 56 C. C. A. 324), which was a litigation between the same parties and about the same subject-matter, wherein the decree was in favor of the defendant Cissna, and complainant's bill was dismissed. The suit instituted by complainant, Stockley, in the Circuit Court of the United States, was in ejectment, and for the purpose of establishing title to and recovering the possession of the same lands now in controversy. We find in the record a stipulation of counsel in which it is agreed that H. W. Stockley, the complainant herein, was the complainant in the federal court suit, and that W. A. Cissna, one of the defendants herein was the W. A. Cissna who was the defendant in the federal court case, and it is further agreed that the lands mentioned and described in the declaration in said suit are the same lands that are mentioned and described in the original bill filed in this cause. The distinctive feature between the two suits lies in the fact that the original suit in the United States court was in ejectment, while the present suit is an action of forcible entry and detainer. It is stated on the brief of counsel for appellant that on the 17th day of November, 1903, an amendment was made in the chancery court of Tipton county, which made this case a suit in ejectment, as well as one for forcible entry and unlawful detainer. In this statement counsel is in error. It is true a written motion for leave to amend the bill was filed on ...