Todd v. Baugh

• Decision Date: 16 November 1954
• Citation: 197 Tenn. 306,273 S.W.2d 2,1 McCanless 306
• Parties: J. H. TODD and wife, Sylvia Todd, v. Collin BAUGH and Lucinda York. 1 McCanless 306, 197 Tenn. 306, 273 S.W.2d 2
• Court: Tennessee Supreme Court

Page 2

273 S.W.2d 2

J. H. TODD and wife, Sylvia Todd, v. Collin BAUGH and Lucinda York.

1 McCanless 306, 197 Tenn. 306, 273 S.W.2d 2

Supreme Court of Tennessee.

Nov. 16, 1954.

Lee A. Beeler, Knoxville, for appellants.

J. M. Underwood, Clinton, Bolt & Henderson, Knoxville, for appellees.

NEIL, Chief Justice.

This is an appeal from a decree of the Chancellor dismissing a bill of review by Todd and wife, brought to review and set aside a final decree in a cause wherein Collie Baugh and Lucinda York were complainants, and J. H. Todd and wife were defendants. The original cause involved the right of complainants to a decree declaring certain deeds held by Todd to be fraudulent and void, and for incidental damages caused by Todd in trespassing upon the lands in dispute. The Chancellor granted the relief prayed for, holding said deeds to be void, and awarding damages against the defendants in the sum of $2,000. The Chancellor's finding of facts was made a part of the decree. The Chancellor denied a petition to rehear. The decree denying a rehearing is a part of the present transcript by stipulation.

The defendants, Todd and wife, did not appeal, or file the record for writ of error in the Court of Appeals.

The bill of review was demurred to by Collie Baugh and Lucinda York and was sustained by the Chancellor. From this decree Todd and wife appealed to this Court and have filed fifteen (15) assignments of error. We will refer to the original cause by docket number, the same being 6368.

It is a settled rule of practice in the Chancery Court that the Chancellor in determining the merits of a bill of review considers only errors appearing upon the face of the record, and not errors which are based upon disputed issues of fact appearing in the record of the original cause.

The first assignment of error merely complains that the Chancellor erred in sustaining the demurrer to the bill of review. Since the foregoing does not comply with Rule 14, we respectfully decline to discuss it. The second assignment complains that the Chancellor, in hearing Cause 6368 and rendering a decree for $2,000 for unliquidated damage, in a joint action of ejectment and trespass, committed error because the joint action 'was collusive and based on evidence used collusively on behalf of each other', that is Collie Baugh and Lucinda York. The foregoing is without merit because (1) it is not an error that appears on the face of the original decree or pleadings, and (2) it is a conclusion of the pleader based upon disputed issues of fact.

The third assignment complains that it was the duty of the Chancellor to have required separate actions in Cause 6368 as Baugh and York were not owners of the property jointly or as tenants in common, and the court was without jurisdiction to entertain such a joint action. There is no merit in this assignment in the light of Code Section 10406, which provides:

'Multifariousness, misjoinder, and non-joinder; motion to dismiss or demurrer.--Multifariousness, misjoinder, or non-joinder of parties, is no sufficient cause for the dismissal of a bill in equity, unless objection is made by motion to dismiss or demurrer.'

The fourth assignment has no merit because the original bill was not objected to by defendants as a joint action in trepass or ejectment. Moreover it conclusively appears from Todd and wife's petition to rehear that the cause was not heard as a suit in ejectment, but one involving location of property lines.

The fifth assignment is a repetition of the fourth and is without merit.

The sixth assignment should be overruled as a conclusion of the pleader. It is as follows:

'Champerty is apparent from the face of the Bill and Decree in Cause No. 6368 and the Chancellor should have dismissed the Bill on his own Motion.'

The assignments, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, and fifteen, are cumulative and argumentative of the first six assignments.

The appellant continues to complain (1) about the misjoinder of parties; (2) that the original cause was an ejectment case and not a suit to determine property lines; (3) that the Chancellor lacked jurisdiction to award unliquidated damages; (4) that it was error for the Chancellor to try the cause upon oral testimony without the written consent of the parties; (5) that it was error for the Chancellor to incorporate his opinion in the decree in Cause 6368.

We repeat that appellants cannot complain that the original cause was a suit in ejectment, since they averred in their petition to rehear the following:

'This tract of land adjoined the complainants, who some years later brought this ejectment or boundary suit to determine the boundary dispute between the properties. As petitioner was advised there has been a dispute for quite a while over this boundary line, and complainants undertook to file and did file ...