Wade v. Murry
| Citation | 34 Tenn. 50 |
| Parties | W. M. WADE v. T. B. MURRY. |
| Decision Date | 31 December 1854 |
| Court | Supreme Court of Tennessee |
The complainant, under the provisions of the act of 1854, ch. 32, filed his petition on the 12th of June, 1854, before the Hon. B. L. Ridley, chancellor, contesting the election of the respondent to the office of attorney-general of the fourth circuit, which the latter claimed, having received a plurality of the votes polled at the election held on the 24th of May, 1854, and to which he had been commissioned before the filing of said petition. The chancellor appointed the 17th day of July, 1854, for the hearing of said cause, of which the respondent was duly notified. Meanwhile, however, the chancellor certified to the governor his inability, on account of sickness, to hold his approaching courts at La Fayette and Carthage, and to try the case of contested election at Carthage, on the 17th of July, 1854. The governor thereupon appointed the Hon. Samuel M. Fite, of Carthage, special chancellor, to hold said courts and to try said cause, who, upon the hearing, decreed said election to be null and void. From this decree the respondent prayed an appeal to the present term of this court, which was regularly granted. The respondent, also, distrusting his right of appeal from the decree of the chancellor, filed in the circuit court of Smith county, at the November term, 1854, a petition for a writ of certiorari to bring said proceedings before said circuit court for revisal. This petition the circuit court (Hon. Judge Gaut presiding) refused to entertain; from whose judgment in the premises an appeal in error was taken to this court.
M. M. Brien, for the complainant, cited the Act of 1854, ch. 32, secs. 12, 14, 15; Const., art 6, sec. 15; Act 1835 (C. & N. 254, 255); 2 Swan, 68; id. 416, 421; 6 Humph. 41.
J. C. Guild, for the respondent, with whom was E. L. Gardenhire, who cited: 1. Upon the right of appeal, Act 1831, ch. 90; 5 U. S. Dig. 922; Ang. on Lim., sec. 131; 2 Kent, 295; Act 1854, ch. 32, secs. 12, 14; Const., art. 6, sec. 15; Act 1835, ch. 1, secs. 4, 6, 7, 10; 2 Yerg. 599. 2. Upon the right to the certiorari, 11 Humph. 249;2 Tenn. 181; 4 Hayw. 54; Bac. Abr., title Certiorari, B; Bouv. L. Dic., title Certiorari; Act 1715 (N. & C. 437); 3 Bla. Com. 41, 42; Hawk. P. C. 287; Bouv. L. Dic., title Courts; 9 Serg. & R. 298;3 Yeates, 479; 2 Burr. 1042; 1 Bla. 285.
This was a proceeding instituted by Wade, under the act of 1854, ch. 32, sec. 12, to contest the election of Murry to the office of attorney-general for the fourth judicial circuit.
On the 9th of June, 1854, Wade presented a “sworn statement of the ground of contest to the chancellor of the division in which said election was held.”
The chancellor, in pursuance of the directions of the statute, appointed the 17th day of July for the trial, at Carthage. Murry was served with a copy of the “statement,” and notified of the time and place of trial, as required by the statute.
It appears that, sometime before the day fixed for said trial, Chancellor Ridley, the presiding chancellor of that division, certified to the governor that from “physical disability” he would be unable “to hold the next terms of the chancery court at La Fayette, Gainesboro, and a case of contested election for attorney-general, at Carthage, on the 17th day of July, next.” Whereupon the governor, on the 6th day of July, appointed and commissioned Samuel M. Fite, Esq., “special chancellor to hold said term of said court at La Fayette, Gainesboro, and Carthage,” etc.
The trial took place before the special chancellor, on the day appointed, and the election of Murry was declared illegal and void, on the ground that the sheriff of Smith county had failed to open and hold an election in the ninth civil district of said county; and that the sheriff of De Kalb had in like manner failed to open and hold an election in the thirteenth civil district of the last-named county. From this decision Murry prayed an appeal in the nature of a writ of error to this court, which was granted. A bill of exceptions, setting forth all the evidence in the case, is contained in the transcript, which, in our view of the case, need not be noticed.
At the November term of the circuit court of Smith, Murry presented his petition, in open court, setting forth the entire proceedings had before the chancellor on the trial of said contested election, and praying the court to grant him a certiorari to remove the proceedings into said circuit court. The petition shows that an appeal in error to the supreme court had been prayed and granted from the decision of the chancellor, but stated that, as doubts had been suggested whether the appeal would lie in such a case, it was deemed proper to apply for a certiorari to remove the case into the circuit court, so that if the petitioner failed in the mode first adopted, he might in the latter mode obtain a revision and reversal of the chancellor's decision, which is alleged to be erroneous. The circuit judge declined to entertain jurisdiction of the matter, and refused to grant the prayer of the petition, and from this refusal of the court Murry also prosecuted an appeal in error to this court. The two cases were submitted together, and the questions properly arising in both will be considered.
And, first, will an appeal in error lie from the chancellor's decision?
The argument that notwithstanding the statute in question points out no method by which the proceedings before the chancellor may be revised, still, under the general law giving an appeal or writ of error from every final judgment or decree of a court of chancery, the appeal in error in the present case was properly granted, and may be maintained, is, we think, wholly untenable. It very erroneously assumes that the jurisdiction is conferred upon the chancellor in his capacity of judge of a court of chancery.
The statute confers no jurisdiction upon the court of chancery. By the proper construction of the statute, a special tribunal is created for the trial of contested elections held under its provisions, of which the person holding the office of chancellor for the division in which the contest may arise is constituted the judge. This tribunal may not improperly be called a court; but in its organization and mode of procedure it is very unlike a court of chancery. The proceedings are not of record; it is merely required that a certified copy of the decision, showing the ground thereof, shall be sent to the governor. The proceeding is commenced, not in the...
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Byrd v. Wright
...... suggested by Chief Justice Green in Brown v. Hows,. 163 Tenn. 138, 154, 40 S.W.2d 1017, it was passed to meet the. decision of Wade v. Murry, decided in 1854 and reported in 34. Tenn. 50, wherein it was held that the Chancellor, hearing. contested elections for judicial offices, ......
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Byrd v. Wright
...Brown v. Hows, 163 Tenn. 138, 154, 40 S. W.2d 1017, it was passed to meet the decision of Wade v. Murry, decided in 1854 and reported in 34 Tenn. 50, wherein it was held that the Chancellor, hearing contested elections for judicial offices, sat as a Special Tribunal, not as a Chancellor, an......
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Moss v. State
...is a difference between the statutes which we are here concerned as to the statute creating the juvenile court of Overton County. Wade v. Murry, 34 Tenn. 50, cited in Bockman, treats the subject of a Chancellor being designated under a statute to try contested elections. The court said, in ......