Ward v. Lovell

• Decision Date: 02 January 1937
• Citation: 113 S.W.2d 759,21 Tenn.App. 560
• Parties: WARD v. LOVELL et al.
• Court: Tennessee Court of Appeals

113 S.W.2d 759

21 Tenn.App. 560

WARD v. LOVELL et al.

Court of Appeals of Tennessee, Middle Section.

January 2, 1937

Certiorari Granted by Supreme Court July 3, 1937.

Decree Affirmed by Supreme Court February 12, 1938.

Appeal from Chancery Court, Part II Davidson County; James B Newman, Chancellor.

Suit by Mrs. Emma H. Ward, next friend of Victoria Harris, against Charles F. Lovell, trustee, and others, to set aside a trust deed and notes executed by Victoria Harris, and for incidental relief, wherein a cross-bill was filed. From the adverse parts of the decree rendered by the trial court complainant appeals.

Affirmed and remanded, with directions.

E. L McNeilly, of Nashville, for appellant.

Wm. C. Bowen, of Nashville, guardian ad litem.

Littell Rust, of Nashville, for appellees.

FAW Presiding Judge.

This suit was begun by an original bill filed in the chancery court of Davidson county, part II, on October 21, 1933. The relief sought by the bill was a decree adjudging that a certain deed of trust purporting to have been executed by Victoria Harris to Chas. F. Lovell, trustee, and certain notes purporting to have been executed by Victoria Harris to the Commerce-Union Bank (which deed of trust and notes will be hereinafter more particularly described) are null and void and that they be cancelled; that judgment be rendered against Commerce-Union Bank for the sum of $215 by reason of money paid to said bank from rentals of the property described in said deed of trust; that the Commerce-Union Bank and Chas. F. Lovell, trustee, be restrained from selling, or attempting to sell, the property described in said deed of trust, and that on final hearing said injunction be made perpetual; that complainant have judgment against Commerce-Union Bank and Chas. F. Lovell, jointly and severally, for the costs of the cause; and that complainant be given general relief.

The principal ground on which it was thus sought to have the aforesaid deed of trust and notes adjudged void and canceled was that said Victoria Harris is, and was, at the time of the purported execution of said notes and deed of trust, of unsound mind and not mentally capable of understanding or comprehending the true nature and effect of such transactions.

The case proceeded to a final decree on pleadings and proof, and the chancellor sustained the bill and adjudged that the aforesaid deed of trust and notes were and are null and void, and he decreed that they be canceled and removed as a cloud on the title of Victoria Harris to the property involved; but the chancellor found that the Commerce-Union Bank and Lovell, trustee, had paid out sums aggregating $1,074.82 for the manifest advantage and benefit of said Victoria Harris, in connection with the transactions involved in the case, which she in equity and good conscience is obligated to repay, and he declared said sum a lien on the property of Victoria Harris described in the pleadings, and directed a sale of said property by the clerk and master of his court, unless said sum be paid in ninety days from the entry of said decree. A more specific statement of the details of said decree will be made later herein.

The "complainant" filed exceptions to certain specified parts of the aforesaid decree (same being those parts of the decree adverse to Victoria Harris) and moved for a new trial thereon, but said motion was overruled by the chancellor. Thereupon, the "complainant" excepted "to the action of the Court in overruling and disallowing the foregoing motion, and each several ground thereof," and prayed an appeal in the nature of a writ of error to this court, which was granted "upon complainant's giving bond as required by law, or taking the oath prescribed by law for poor persons, in lieu of bond." In due season, the oath prescribed for poor persons was filed by "Mrs. Emma H. Ward as next friend of Victoria Harris of unsound mind," stating that the affiant "has no property of the said Victoria Harris out of which to bear the expense of the appeal and the appeal in the nature of a writ of error," etc.

With the foregoing brief outline of the purpose and history of this suit in mind, we will now advert to a question arising on the record with respect to the jurisdiction of this court to entertain the appeal. Neither of the parties to the cause has questioned the jurisdiction of this court, but when a court is without jurisdiction any judgment it may render is a nullity, and "it is the duty of the court to determine the question of its jurisdiction on its own motion; and it will not ignore a want of jurisdiction because the question is not raised or discussed by either party." 3 C.J. p. 372, § 128. To same effect, see Barnett v. Kunkel, 264 U.S. 16, 44 S.Ct. 254, 68 L.Ed. 539; Smith v. Apple, 264 U.S. 274, 44 S.Ct. 311, 68 L.Ed. 678; Lewellen v. Lewellen, 319 Mo. 854, 5 S.W.2d 4; Tressler v. Whitsett, Mo.App., 280 S.W. 438; State ex rel. v. Hoffman, 313 Mo. 667, 288 S.W. 16; Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38, 41; Giles v. Teasley, 193 U.S. 146, 24 S.Ct. 359, 48 L.Ed. 655, 659.

The caption of the original bill filed in the chancery court is as follows: "To the Honorable James B. Newman, Chancellor, holding the Chancery Court, Part II, for Davidson County, Tennessee:

"The Bill of Complaint of Mrs. Emma H. Ward, a citizen of Tennessee and a resident of Davidson County, who sues as next friend to Victoria Harris, a person of unsound mind, Complainant, against Charles F. Lovell, Trustee, and the aforesaid Victoria Harris, each a citizen of Tennessee and a resident of Davidson County; and the Commerce Union Bank, a corporation organized, existing and carrying on business under and in virtue of the laws of Tennessee, with its principal office and place of business in the City of Nashville of the County and State aforesaid, Defendants."

It is stated in the bill that "the names, citizenship and residence of the complainant and the defendants hereunto are as stated in the foregoing caption."

It is then alleged that "the defendant Victoria Harris is a person of unsound mind, *** although she has not been formally adjudged insane; and she is without regularly appointed guardian or trustee," and that "she is about thirty-five years of age."

It appears from the bill and the entire record that Mrs. Emma H. Ward neither has nor claims any personal interest in the cause of action alleged in the pleadings, but is asserting the right to sue only "as next friend of Victoria Harris." Such suit should have been in the name of Victoria Harris, described as suing by her next friend, etc. 14 Ency. Pl. & Pr. pp. 1049, 1050; Gibson's Suits in Chancery, 2d Ed. § 156.

"A suit by a next friend must be brought in the name of the infant or non compos, since it is the latter, and not the next friend, who is the real and proper party. The next friend is neither technically nor substantially a party." Williams v. Gaither, 139 Tenn. 587, 589, 202 S.W. 917, 918; Morgan v. Potter, 157 U.S. 195, 15 S.Ct. 590, 39 L.Ed. 670, 671.

It has been held in a few cases from other jurisdictions that, where a suit is brought by one suing as next friend of a person under disability, the form may be waived by failure to object, and the case may be tried as the suit of the person under disability suing by next friend. 14 Ency. Pl. & Pr. page 1050.

But, in the instant case, the complainant made Victoria Harris, the person under disability, a defendant to the bill, and prayed "that a guardian ad litem be appointed to appear and defend for the defendant Victoria Harris as a person non compos mentis." A subpoena to answer accordingly issued and was served upon Victoria Harris as a defendant to the original bill, and thereafter, on motion of "complainant," a guardian ad litem was appointed by the court to defend this suit for said Victoria Harris. The defendant Victoria Harris, by her said guardian ad litem, filed an answer to the original bill and thereby submitted her rights and interests in the matters averred in the bill to the protection of the court; and she also filed a similar answer, by her guardian ad litem, to the cross-bill filed by the Commerce-Union Bank and Chas. F. Lovell, trustee.

"Exceptions" to the final decree of the chancery court were filed by "complainant," and a motion for a new trial, based on said exceptions, was filed by "complainant"; but said motion was overruled by the chancellor, and the record then recites that, "To the action of the Court in overruling and disallowing the foregoing motion, and each several ground thereof, complainant excepts and prays an appeal, in the nature of a writ of error, to the Court of Appeals sitting at Nashville, present term of said Court, upon complainant's giving bond as required by law, or taking the oath prescribed by law for poor persons, in lieu of bond; and thirty days from May 21, 1935 are allowed complainant for presenting a bill of exceptions, executing said bond or taking said oath, and otherwise perfecting her said appeal."

Mrs. Emma H. Ward filed an oath in lieu of an appeal bond, as follows:

"Mrs. Emma H. Ward, next friend to Victoria Harris, vs. Chas. F. Lovell,

Trustee, et als.

Rule No. 46769.

"Mrs Emma H. Ward, as next friend of Victoria Harris of unsound mind, makes oath that she has no property of the said Victoria Harris, out of which to bear the expense of the appeal and the appeal in the nature of a writ of error, to the present term of the Court of Appeals sitting at Nashville, prayed, for and on behalf of the said Victoria Harris, from the final decree in the above entitled cause on April 22, 1935, and May 17, 1935, (entered in Minute Book No. 31, pages 74 and 163, respectively), and on May 17, 1935, (entered in Minute Book No....