Swan v. Harrison

• Decision Date: 31 December 1865
• Citation: 42 Tenn. 534
• Court: Tennessee Supreme Court
• Parties: ADDIE SWAN v. H. H. HARRISON & K. J. MORRIS, EX'RS.

42 Tenn. 534

ADDIE SWAN

v.H. H. HARRISON & K. J. MORRIS, EX'RS.

Supreme Court of Tennessee.

December Term, 1865.

FROM DAVIDSON.

In this cause there was a suit pending in the chancery court, for a divorce, when Joseph M. Swan, the husband of complainant, died, before any decree was entered granting a divorce or alimony, and pending the reference of the matter to three arbitrators, who had made no award. Complainant filed her bill to revive the cause against her deceased husband's executors. The defendants demur to the bill, and, at the November term, 1865, Chancellor S. D. FRIERSON sustained the demurrer, and dismissed the bill. Complainant appealed.

N. BAXTER, SR., and JORDAN STOKES, for complainant.

E. H. EAST, for respondents.

MILLIGAN, J., delivered the opinion of the court.

This is a bill of revivor filed in the chancery court at Nashville, against the executors of Joseph M. Swan, deceased, to revive a cause brought by bill in that court, by the complainant in this case, against her husband, Joseph M. Swan, in his lifetime, for divorce and alimony, and to cause a decree for a divorce a vinculo, which, as it is alleged, rested, in the former case, in the breast of the court, but was never announced, to be now declared, and entered nunc pro tunc. The application is one of singular novelty, and the argument on both sides has been conducted with great research and ability.

The record in the original cause is not before us; but enough appears from this record, to warrant the belief, that this unfortunate controversy is but a repetition of those relentless contests, that sometimes arise, even in the higher walks of life, which shock the moral sense of the community in which they occur.

The original bill, as it appears from the references made to it in the bill of revivor, charges the husband with adultery, cruel and inhuman treatment, and wilful desertion and abandonment. To this the husband responded, and filed a cross bill. In his answer, he denies the charges in the original bill; and although the allegations in the cross bill do not fully appear in this proceeding, it is plainly inferable, that they consisted in the customary charges, in such cases, of recrimination. The cross bill was answered, and a temporary allowance made for the support of the wife, pending the litigation. Proof was taken on both sides, and the cause regularly set down for hearing at the November term, 1864; when, in consequence of the feeble health of the chancellor, it was agreed by both parties, that three distinguished members of the bar should be selected, who should hear and decide the cause, according to the rules and principles of law and equity that govern such cases; and their decision, or [that of] a majority thereof, was to be entered as the decree of the chancellor. This extemporized tribunal was organized, and the cause regularly submitted to its determination. After argument, time was taken to deliberate, and a day fixed upon which the decree should be announced. But before the day upon which the opinion was to be delivered, and after, as it is alleged in the bill, two of the referees had agreed that the complainant was entitled to a divorce from the bonds of matrimony, all further action was suspended, on account of the dangerous illness of the husband, who shortly thereafter died. No decree was ever announced, either by the referees or by the chancellor; and this bill, as before stated, seeks to revive the original cause against the executors of the husband, Joseph M. Swan, deceased, to have the decree for divorce a vinculo entered now for then, and permanent alimony set apart out of the estate of the husband for his widow. The defendants demurred to the bill, which was sustained by the chancellor, and the bill dismissed, from which there is an appeal in error to this court.

It is proper to say, that it further appears in the bill, that Joseph M. Swan, in his lifetime, was possessed of a large estate, most of which consisted in money, bonds, and obligations to pay money, and which amounted to about $75,000; and that before his death, by deeds inter vivos and will, he disposed of his entire estate, without, in any manner, providing for his wife, except one-third interest in the house and lot upon which she resided in the city of Nashville, worth, as we may infer from the record, about $6,000.

Under this state of facts, various questions are presented in argument, among which, the first deemed necessary to be noticed, is the right of the complainant to an order, directing the unannounced decree for divorce a vinculo to be entered nunc pro tunc.

To sustain this position, various authorities have been referred to and relied on in argument; but, upon examination, none of them appear to carry the doctrine so far as it is contended for in this case. The English practice of drawing up, passing and entering decrees, is so different from ours, that but little direct authority can be drawn from them, which is applicable to the practice in this country. Most of the American cases will be found to rest upon applications made during the term, or upon a peculiar state of facts, which leave no doubt as to the entire provisions of the decree, and the reasons which prevented its enrollment. But no case, we apprehend, can be found, where a court, either in England or America, has gone so far as to order a decree which had never been announced, after the close of the term, and the lapse of a whole year, and the death of the party against whom it is to be entered, to be declared and entered as before the death of the party, and of the term at which the cause was argued. Such a practice, would, in deed, be anom alous to, if not altogether unprecedented in, the history of equity jurisprudence in this country. But in this case there was no decree. The chancellor at no time heard the cause. The tribunal, whose partial opinion is sought to be declared as the decree of the chancellor, and, as such, entered nunc pro tunc, was, to all intents and purposes, an arbitration, clothed with power, by the consent of the parties, to hear and determine the whole cause, and report the result of their determination to the chancellor; which was, by the terms of the submission, to become the decree of court. By the statute, Code, sec. 3446, an award is required to be in writing; and the loose declaration of even a majority of the referees, as in this case, is wholly insufficient to satisfy the positive requirements of the law. The court, to whom the award is formally submitted, may, by the plain provisions of the statute, Code, sec. 3448, reject it, for any legal or sufficient reason, or recommit it for rehearing to the same or other arbitrators, agreed upon by the parties. The whole cause was referred to the arbitrators; but it is not pretended that anything was agreed upon, but the rights of the complainant to a divorce a vinculo. No alimony, either temporary or permanent, was determined upon, and nothing was reduced to writing. The award was incomplete, and, as an award, binding upon neither party. But the case would not have been materially changed, had all the formalities of the law been complied with.

The chancellor must have heard the cause, even after the award. Arbitrators have no power, under the statute, to grant divorces or set apart alimony, without the concurrence of the court. The Code, sec. 2465, 2467, and 2468, in substance, expressly provides, if the court upon hearing the cause, is satisfied that the complainant is entitled to relief, it may be granted according to the circumstances of the case. The marriage may be declared null and void ab initio, or the bonds of matrimony dissolved forever, or a perpetual or temporary separation declared; within either case, such support and maintenance to the complainant, as the nature of the case and the circumstances of the parties may require. We are, therefore, of opinion, that the declaration of the arbitrators, in no aspect in this case, was such a decree, as a court of equity could, under any circumstances, after the close...