Taylor v. Taylor

• Court: Tennessee Supreme Court
• Writing for the Court: McKINNEY, J.
• Citation: Taylor v. Taylor, 232 S.W. 445, 144 Tenn. 311 (Tenn. 1921)
• Decision Date: 24 June 1921
• Parties: TAYLOR v. TAYLOR.

232 S.W. 445

144 Tenn. 311

TAYLOR v. TAYLOR.

Supreme Court of Tennessee.

June 24, 1921

Certiorari to Court of Civil Appeals.

Suit for divorce by Elizabeth R. Taylor against C. H. Taylor. There was a decree for complainant for divorce, which awarded her alimony and attorney's fees, and from that portion awarding alimony and attorney's fees, defendant appeals. The Court of Civil Appeals modified the judgment and remanded the case, and both parties bring certiorari. Petitions for certiorari granted, and decree directed in accordance with opinion.

Edward Smith, of Milan, for plaintiff.

Francis Fentress, of Memphis, for defendant.

McKINNEY J.

Mrs Taylor instituted this suit against her husband for a divorce and for alimony.

An absolute divorce was decreed her upon the grounds of desertion for more than two years, cruel and inhuman treatment and abandonment and failure to provide.

The trial judge decreed her for permanent alimony a lot in Memphis, adjoining her residence, valued at $1,000, the household and kitchen furniture, valued at $1,500, and ordered that the defendant pay her the sum of $150 per month during her life.

On motion, the defendant was required to pay an attorney's fee of $250, pendente lite, and an additional $250 was decreed complainant for her solicitor on final hearing.

The defendant did not appeal from so much of the decree as awarded the complainant a divorce, but he did appeal to the Court of Civil Appeals from that portion of the decree which awarded her alimony and counsel fees.

The Court of Civil Appeals modified the decree of the lower court to the extent that it abrogated the monthly allowance of $150, and instead decreed the complainant the sum of $4,500 in solido, which the defendant was ordered to pay, with interest, at the rate of $125 per month.

The case was remanded to the lower court for the purpose of fixing the counsel fees for the complainant's solicitor for services rendered in that court.

The Court of Civil Appeals further decreed that the case be retained on the docket of the trial court for the purpose of making future orders as to alimony.

Both parties have filed petitions in this court for writs of certiorari, in order that the decree of the Court of Civil Appeals may be reviewed, and a number of errors have been assigned. We will dispose of the questions raised without copying into this opinion said assignments.

It is first insisted by the defendant that the whole proceeding was void because the trial court was without jurisdiction for the reason that the divorce proctor of Shelby county had not indorsed an acknowledgment of service on the original bill before it was filed, as provided in chapter 121 of the Acts of 1915. The third section of said act is as follows:

"Be it further enacted, that it shall be the duty of the divorce proctor to appear upon the trial of every divorce case in his county, whether the suit is contested by the defendant or not; and it shall be the duty of the divorce proctor to acknowledge service upon him of a copy of every bill for divorce with acknowledgment of service shall be indorsed by him upon the original bill before the same is filed in any court in his county and no bill for divorce shall be filed unless it bears such acknowledgment over the signature of the divorce proctor with the date of service; but nothing herein shall be construed as dispensing with the necessity of the service of proper process upon the defendant as is required by existing laws.

Immediately upon the commencement of a suit for divorce, it shall be the duty of the divorce proctor to investigate the charges made in the bill and he shall be prepared to advise the court, upon the hearing, as to the merits of the case."

By oversight the complainant filed her bill without procuring this indorsement, but same was subsequently had, and before the case was tried. The defendant is the only one who questioned this oversight, which he did after he had answered the bill.

We think the subsequent proceedings covered the omissions in the institution of this suit. The divorce proctor appeared before the hearing, made proper indorsements on the pleadings, and was present to advise the court upon the merits of the case. While these things were not done in regular order, there was a substantial compliance with the provisions of the statute before any decree was passed.

It appears from the record that the complainant and the defendant were married in 1896, and had lived together for more than 20 years before the final separation. Two children were born to them, a daughter and a son. The former is married, and is being supported by her husband. The latter is a student at the University of Tennessee, and is being supported by the defendant.

Some years ago the defendant purchased a home in Memphis and had the title conveyed to the complainant. This property is valued at $11,000, but is incumbered for $2,500, making the value of complainant's equity in the property $8,500. The proof shows that it is badly in need of repairs, which would cost about $1,000. The property owned by the defendant is as follows:

A vacant lot on Viton avenue ....................... $1,500 00

Cash ................................................ 1,059 96

Bonds ................................................. 500 00

Dental equipment ...................................... 800 00

Accounts receivable ................................. 1,000 00

Surrender value of two policies of life insurance ... 1,250 00

Secondhand automobile ................................. 400 00

Interest in an apple orchard in Maryland ............... 18 00

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Making a total...