Walsh v. Rose

• Decision Date: 29 December 1945
• Parties: WALSH et al. v. ROSE et al.
• Court: Tennessee Court of Appeals

193 S.W.2d 118

29 Tenn.App. 78

WALSH et al. v. ROSE et al.

Court of Appeals of Tennessee, Middle Section.

December 29, 1945

Certiorari Denied by Supreme Court March 2, 1946.

Appeal from Chancery Court, Fentress County; A. F. Officer Chancellor.

Suit by Adalaide Mary Walsh and others against Archie Rose and others for ejectment, for attachment to be levied on timber cut from realty, for appointment of receiver to take charge of timber for injunction to restrain defendants from cutting any more timber or selling what had been cut, for value of timber removed and damages to land, and for declaration that certain deeds to defendants were void and should be removed as a cloud on complainants' title. From an adverse decree defendants appeal.

Decree modified, and, as modified, affirmed.

W. A. Garrett, of Jamestown, for appellants.

W. C. Smith, of Jamestown, for appellees.

HICKERSON Judge.

This is an ejectment suit. The land involved lies in Fentress County, Tennessee, on the waters of Obed's River and Piney Creek and Bill's Creek; and it is described in the bill as being the land covered by grant No. 3329 issued by the State of Tennessee to Milton King on Fentress County Entry No. 488. The grant was dated March 16, 1830. There were certain exclusions set forth in the bill.

Complainants alleged they were the owners of the land; defendants had entered upon it under fraudulent claims and were 'committing destructive trespass by cutting the timber from said lands'; some of the timber had already been sold; some was on the mill yard located on the land; and some logs which had been cut from the land were lying in the woods.

Complainants prayed that: (1) they be decreed to be the owners of the land; (2) an attachment be issued and levied on all the timber which had been cut from the land; (3) a receiver be appointed to take charge of the timber, sell it, and hold the proceeds to be paid out under orders of the court; (4) for an injunction to restrain defendants from cutting any more timber or selling what had been cut; (5) for a decree for the value of the timber removed and damages to the land; and (6) that certain deeds to defendants be declared void and removed as a cloud upon complainants' title.

George L. Stockton signed and swore to the original bill as 'the local agent for complainants named in the foregoing bill.' The suit was brought in the name of the alleged owners whom he represented as agent. Mr. Stockton was, also, the clerk and master of the chancery court of Fentress County.

The chancellor issued a flat upon the foregoing bill for the attachment and injunction fixing the bond at $500. The bond was signed by complainants, as principals, and by W. C. Smith, V. H. Pile and George L. Stockton, as sureties.

Thereupon, subpoenas to answer, the injunction, and the attachment were issued by George L. Stockton, clerk and master.

The suit was later dismissed as to Walter E. York, who was in the army.

All the defendants, except Wince Owens answered through their solicitor. They denied all the material allegations of the bill, and alleged that the agreement between complainants and George L. Stockton under which the suit was brought was 'unlawful, champertous, spurious, and fraudulent,' and that by reason thereof complainants came into court with unclean hands, and the bill should be dismissed.

The defendants Yorks alleged they had been in actual possession of the land from which they sold the timber for more than seven years and twenty years, and that this possession was of such character as to perfect title in them.

Defendant Rose alleged he bought the timber from defendants Yorks, paid them for all he had removed, and the rest was on the mill yard. He denied complainants owned the land.

Defendant Lewallen alleged he had no interest in the land; that he had simply contracted to buy the lumber from Rose on the mill yard; and he had paid Rose for all lumber which had been removed by Lewallen.

Defendant W. F. (Wince) Owens answered in his own person, and denied that he was guilty of any wrong. He averred that he did buy certain timber from defendants Delmer York and Walter York; but alleged that they claimed to own the land; showed him a deed to themselves which covered the land; he purchased the timber in good faith; and paid the Yorks for it.

The chancellor held complainants had proved their title to the land described in the bill by deraigning from state grant No. 3329 to Milton King; and by proof of seven years adverse possession under registered color of title with exceptions, in addition to those set out in the bill, of the Henry Sargent, or Rose mill field, and that Delmer York owned an interest in some lands with the Sells heirs. The court also held that defendant Lewallen was not liable as a trespasser for timber cut from this land which was bought by him.

All other material issues were decided in favor of complainants.

The decree provided:

'To that part of the court's decree in holding that the defendant Hubert Lewallen was not liable as a trespasser, along with the other defendants, complainants excepted at the time and now except.

'The complainants excepted to that part of the court's decree wherein he held that the complainants were not entitled to recover the Sargent field, or Rose mill field as it is called, because the defendants introduced no competent proof to show themselves entitled to hold this lot, and because he is shown to have abandoned it if he ever had a bonafide possession on it, and he, Jesse York, and others have shown by sworn plea in the case of J. S. Allred and others v. W. F. (Wince) Owens and others, Rule No. 2319 in this court, that grant 3329 was a paramount title to the land it covered and plead same as an outstanding title in that case.

'The bill, answer and plea of defendants was read by complainant on the trial of this case, on notice, and the court orders it made a part of the record in this case.

'Complainants except to that part of the court's decree wherein he held that Delmer York owned an interest in some lands with the Sells heirs, and failed to include the same in the recovery, because the defendants introduced no competent proof to show that he had such an interest in lands on the inside of the boundary sued for with the Sells heirs.

'The defendants except to all adverse action of the court as aforesaid, and pray an appeal to the Court of Appeals sitting at Nashville, Tennessee, which appeal the court is pleased to grant, and the thirty (30) days are allowed from today, October 4, 1944, in which to perfect said appeal as provided by law, and sixty (60) days to make and file bill of exceptions dating from said date also, but said bill of exceptions will be deposited with the Special Clerk and Master before the expiration of forty-five (45) days, and the proposed bill of exceptions submitted to the court at least five (5) days before the expiration of the sixty days.'

Defendants perfected an appeal to this Court. Complainants did not.

A question of practice is presented. Complainants have assigned errors when they did not perfect an appeal. This practice is permitted if the appeal of defendants is broad, and not special or limited. Central National Bank v. Willis, 8 Tenn.App. 204; Pigg v. Houston and Liggett, 8 Tenn.App. 613. If the appeal of defendants were special or limited, complainants--appellees--who did not appeal, cannot assign errors in this Court which we can consider. County Board of Highway Commissioners v. Wilde, 179 Tenn. 141, 163 S.W.2d 329.

The portion of the decree quoted above shows the appeal of defendants was special. The adjudication of the court was set forth in the decree. Part of the issues were decided in favor of complainants, and part in favor of defendants. Following that part of the decree, complainants made three special exceptions to the parts of the decree unfavorable to them. The next paragraph of the decree provides: 'The defendants except to all adverse action of the court as aforesaid, and pray an appeal to the Court of Appeals sitting at Nashville * * *.' Clearly, the appeal was limited to 'all adverse action of the court as aforesaid,' and does not present the entire case to this Court for review de novo. That leaves the assignments of error filed in behalf of defendants to be disposed of. We cannot consider the assignments filed in behalf of complainants.

1. Defendants make the question that the chancellor erred in permitting the bill to be filed and granting a flat for the attachment and injunction when the bill was sworn to by George L. Stockton who was clerk and master of the court in which the bill was filed.

Defendants rely upon Code, Section 9973 which prohibits clerks from practicing law in their own courts; and Code, Section 10051 which provides that no clerk can become 'security for the prosecution of suits in his court, nor upon any bonds or other obligations required to be executed by the parties in the progress of such suits.'

George L. Stockton is not a lawyer in this case. He is agent of complainants. For his services he will receive a part of the recovery. There is no rule which would prevent a clerk from becoming a party litigant in his own court. Such fact would be ground for his removal in that case as clerk of the court, but would not be ground for dismissing the suit.

It is true that Stockton signed the injunction and attachment bond in violation of the statute; but the bond was also signed by W. C. Smith and V. H. Pile. No motion was made to strike the name of Stockton from the bond. The solvency of the two other sureties is not questioned. The mere fact that a clerk and master signed a bond as surety, is not ground for dismissing the case when the...