Whitson v. Johnson

• Decision Date: 06 August 1937
• Citation: 123 S.W.2d 1104
• Parties: WHITSON et al. v. JOHNSON et al.
• Court: Tennessee Supreme Court

123 S.W.2d 1104

WHITSON et al. v. JOHNSON et al.

Court of Appeals of Tennessee, Middle Section.

August 6, 1937.

Certiorari Denied by Supreme Court January 21, 1939.

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

Suit by John H. Whitson and others against Winnie Johnson, who filed a cross-bill in the nature of a supplemental bill of review of a former suit, and others, for ejectment of the named defendant and for other relief. From a judgment for complainants, the named defendant appeals.

All assignments of error overruled and the decree affirmed.

D. B. Johnson, of Gainesboro, for appellant Winnie Johnson.

Haile & Reneau, of Celina, for appellees John H. Whitson et al.

Geo. B. Haile, of Cookeville, for appellee Deposit Bank of Monroe County, Ky.

CROWNOVER, Judge.

The original bill in this cause was filed, on May 26, 1937, by J. H. Whitson and others, a copartnership, operating as the Cookeville Planing Mills, against Mrs. Winnie Johnson, of Clay County, and the Deposit Bank of Monroe County, Ky., for the ejectment of Mrs. Johnson from two tracts of land and the timber on a third tract, in Clay County, purchased by them from the said Deposit Bank, and in the alternative for a decree against said Bank for the purchase price of the lands and timber, $3250, and such incidental damages as they may have suffered by a breach of the warranty of the deed.

The Bank claimed title to this property by reason of the foreclosure of a mortgage and sale by the Chancery Court, at which sale it purchased the property and received a deed from the Clerk & Master, and it afterwards conveyed the same to the complainants.

Mrs. Winnie Johnson filed her answer attempting to attack the validity of the proceedings in the former case under which the lands and timber were sold, and alleging that the deed from the Bank to the complainants was champertous, and that the Chancellor was incompetent to hear this cause because he was related to her.

She also filed her answer as a cross-bill in the nature of a supplemental bill of review of the former suit styled Deposit Bank of Monroe County, Ky., against Winnie Johnson, in the Chancery Court of Clay County, in which suit a final decree of the Supreme Court was pronounced, on April 7, 1937, dismissing her bill of review filed in that case after a final decree in the Chancery Court confirming the sale of the lands herein involved, divesting and vesting title and awarding a writ of possession if necessary.

Her grounds for a bill of review in this suit are that the mortgage was not properly acknowledged; that the Bank, being a Kentucky corporation, had not complied with the law of Tennessee and was not qualified to conduct a banking business in Tennessee; that her failure to file an answer in the former case had been caused by the misrepresentations of the Bank officials, who had told her that it would not be necessary for her to employ a lawyer and answer; that the minutes of the court rendering a decree for the amount due and ordering a sale of the property were not signed by the Chancellor.

The complainants filed (1) a motion to strike the answer and cross-bill, (2) a demurrer to the cross-bill of review, and (3) a plea of res adjudicata.

The Chancellor sustained the demurrer to the cross bill, but permitted the pleading to stand as an answer, to which she excepted as to action on the cross-bill.

The case was heard by the Chancellor and a jury on oral and documentary evidence. No issues other than the pleadings were tendered at any time. At the conclusion of the evidence the complainants and the defendant Bank "moved the court to withdraw the issues from the jury," there being no controverted questions of fact, and it being uncontroverted that Mrs. Winnie Johnson was in possession of the property in question at the time she executed the deed of trust to the Bank and on up to the present time.

The Chancellor withdrew the issues from the jury, sustained the plea of res adjudicata, held the deed from the Bank to the complainants was not champertous, and decreed that the complainants were the owners of the lands and timber described, and were entitled to the possession of same, and that a reasonable rental value of the premises per year was $65.

Mrs. Winnie Johnson excepted to said decree and appealed to this court, filed a bill of exceptions, but made no motion for a new trial, and has assigned errors, which are, in substance, as follows:

(1) The Chancellor erred in not sustaining the bill of review.

(2) The Chancellor erred in sustaining the cross-defendants plea of res adjudicata.

(3) The Chancellor erred in holding and decreeing that the deed from the Deposit Bank to the Planing Mills was not champertous.

(4) The Chancellor erred in decreeing that the complainants had properly deraigned title.

(5) The Chancellor erred in withdrawing the issues from the jury.

(6) The Chancellor erred in holding that the Bank had a valid decree of foreclosure, as the Chancellor had not signed the minutes.

A number of errors are assigned to the prior case of Deposit Bank v. Winnie Johnson, which will not be considered, as they were raised and passed upon in the former case, as will hereinafter be shown.

Mrs. Winnie Johnson, in July, 1928, borrowed $2000 from the Deposit Bank of Monroe County, Ky., and executed a note and a mortgage to secure same covering the property involved in this suit.

On default in payment of the note the Bank filed a bill in the Chancery Court, on October 17, 1934, to foreclose the mortgage.

Mrs. Winnie Johnson was made defendant to the bill and served with process. She failed to answer and judgment pro confesso was entered. Decree of sale was made and entered, the lands and timber sold, the Bank being the purchaser, for $2600, the sale confirmed, and a deed to the Bank was executed by the Clerk & Master.

On March 18, 1936, Mrs. Johnson filed a bill of review in that case, to which the Bank demurred. The Chancellor sustained the demurrer and dismissed the bill of review, to which Mrs. Johnson excepted and appealed to the Supreme Court, which court affirmed the decree of the Chancellor.

The Bank afterwards sold the property and executed a deed to the complainants, the Cookeville Planing Mills.

Mrs. Johnson refused to surrender possession of the property to the Cookeville Planing Mills. Thereupon they filed this suit.

The record of the former case, including the decrees, was filed and treated as read in evidence in this case.

At the outset the complainants made a motion in this Court to affirm the decree because no motion for a new trial was made. This motion must be overruled. A motion for a new trial is not necessary to review the action of the Chancellor upon evidence which does not bear on issues submitted to the jury or where the issues have been withdrawn from the jury. Carpenter v. Wright, 158 Tenn. 289, 13 S.W.2d 51.

1. The appellant's first assignment of error is that the Chancellor erred in not sustaining her cross-bill filed in this suit as a bill of review of the former suit. The cross-bill filed by Mrs. Johnson could not be maintained as a bill of review of the former proceeding of Deposit Bank of Monroe County, Ky., against Winnie Johnson for several reasons:

(a) A bill of review had been dismissed in the former case. A bill of review will not lie after the affirmance of the original decree on a prior bill of review. 21 C.J. 768, sec. 924.

"Final decrees in equity may be modified or set aside in either one of three modes: (1) By appeal within the time prescribed by law; (2) by bill of review filed within the time allowed by law for an appeal, charging error apparent upon the record; and (3) by original bill charging fraud or newly-discovered evidence. The petitioners chose to adopt the second method of contesting the decrees in question, and they are concluded by the adverse decision of the supreme court. It is, therefore, entirely clear that the petitioners have exhausted their remedy, so far as it was to be had by any form of proceeding in the original suits, and that if they have any remaining rights which a court of equity will enforce, they must seek relief by an independent and original proceeding, in which they must assert no right or claim in hostility to, or inconsistent with, the adjudications already had." Huntington v. Little Rock & Ft. S. R. Co., C.C., 16 F. 906, 909.

(b) The decree on the first bill of review is res adjudicata as to this bill, as this bill sets out the same facts contained in the first bill. Clemmons v. Haynes, 3 Tenn.App. 20; Keith v. Alger, 114 Tenn. 1, 28, 85 S.W. 71.

(c) In the former suit a final decree of the Supreme Court was entered. A bill of review cannot be maintained to review a decree of the Supreme Court, either for error apparent or new matter. Hurt v. Long, 90 Tenn. 445, 16 S.W. 968; Murphy v. Johnson, 107 Tenn. 552, 64 S. W. 894; Fourth & First Nat. Bank v. Harris, 9 Tenn.App. 301, 305; Clemmons v. Haynes, 3 Tenn.App. 20.

(d) No grounds for a bill of review were alleged. The bill does not allege that there were errors apparent on the face of the final decree, or that new matter or evidence had been discovered since that final decree. Randall v. Payne, 1 Tenn.Ch. 137; Hardwick v. American Can Company, 115 Tenn. 393, 89 S.W. 735, 1 L.R.A.,N.S., 1029, except the assignment that the Chancellor did not sign the minutes containing the original decree of foreclosure. This question should have been made in that case on appeal, and now comes too late.

"A bill of review lies to impeach a decree for errors of law apparent on the face of the decree, or for new matter, which hath arisen in time after the decree, or for new testimony come to light after the decree was made, that could not possibly have been used when the decree was passed. Eaton v. Dickinson, 3 Sneed 397." Arnold v. Moyers, 69 Tenn. 308, 1 Lea 308.

This is not an original bill to restrain the enforcement of the...