Willis & Turner v. Moore & Davis

• Decision Date: 02 May 1925
• Citation: 271 S.W. 736,151 Tenn. 562
• Parties: WILLIS & TURNER v. MOORE & DAVIS ET AL. WILLIS & TURNER v. YEARWOOD & MILLSTEAD ET AL.
• Court: Tennessee Supreme Court

271 S.W. 736

151 Tenn. 562

WILLIS & TURNER v. MOORE & DAVIS ET AL.

WILLIS & TURNER v. YEARWOOD & MILLSTEAD ET AL.

Supreme Court of Tennessee.

May 2, 1925

Appeal from Chancery Court, Lincoln County; Thos. B. Lytle Chancellor.

Separate suits heard together by Willis & Turner against Moore & Davis and others, and against Yearwood & Millstead and others. Decree for complainants was affirmed by Court of Civil Appeal, and defendants appeal. Reversed and remanded.

Giles L. Evans, of Fayetteville, for complainants.

Lamb & Lamb, of Fayetteville, for defendants.

CHAMBLISS J.

These suits, heard together, were brought in the chancery court to recover the value of mules alleged to have been converted to the use of defendants. From the chancellor's decree in favor of complainants, appeal was taken to the Court of Civil Appeals. That court in a forceful opinion by Mr. Justice Faw speaking for a majority of the court, has found that, while the suits were brought in equity and tried according to the forms of chancery practice, they were actions at law, of which the chancery court had jurisdiction concurrently with the circuit court only by virtue of the Act of 1877, chap 97; but were not "in a matter of equity," as to which trial de novo may be had on the appeal provided for by our statute. Shannon's Code, § 4887. So finding, that court declined to consider the preponderance of the evidence but holding, according to the practice on appeals in the nature of writs of error from the lower courts, that there is material evidence to support the chancellor, has affirmed his decree. Petitioners here challenge this holding in this important matter of procedure as an erroneous construction of the pertinent statutes and as contrary to the practice heretofore approved and followed.

It is said that appeals authorizing a review of the facts de novo, that is calling for a determination of the preponderance of the evidence, are had alone by virtue of our statute, brought into Shannon's Code as section 4887 from the Code of Tennessee, § 3155, which reads as follows:

"Either party dissatisfied with the judgment or decree of the circuit or chancery court, in a matter of equity tried according to the forms of the chancery court, may appeal to the Supreme Court, and have a re-examination, in that court, of the whole matter of law and fact appearing in the record."

The insistence, plausibly and forcefully made, is that the statute makes no distinction between the circuit and chancery courts, but applies to a designated class of cases, only, in whichever court tried, and that--

"In order that a case may fall within the statute and be entitled to be heard de novo on appeal, two facts must concur, viz.: (1) It must be 'a matter of equity' (that is, a case falling within the domain of equity jurisprudence), and (2) it must have been 'tried according to the forms of the chancery court.' "

While conceding that the precise point has not been heretofore decided by this court, or by the Court of Civil Appeals, reliance is had upon Toomey v. Atyoe, 95 Tenn. 373, 378, 32 S.W. 254; Beatty v. Schenck, 127 Tenn. 63, 152 S.W. 1033; Choate v. Sewell, 142 Tenn. 487, 221 S.W. 190; and Payne v. Satterfield, 114 Tenn. 58, 84 S.W. 800, as in harmony with and to some extent, at least, supporting the conclusion announced that the well-settled rule of practice applicable to appeals from circuit courts in the nature of writs of error must be applied to a case tried in the chancery court according to the forms of that court--unless "a matter of equity" is involved.

A question of much importance is thus presented. Affirmance of this holding involves a departure from a practice which has been followed uniformly for the half century since concurrent jurisdiction was conferred in certain law cases upon the chancery court. A change so radical calls for serious consideration. Conceding that the question has not been directly decided, and that the doctrine of stare decisis is not therefore in strictness controlling, the principles underlying that doctrine would seem to warrant the extension thereof to a construction which, although not directly decided, has been recognized by acquiescence and uniform adoption in practice over many years. The phrase stare decisis, et non quieta movere--to stand by precedents, and not to disturb settled points--would appear to embrace important questions of practice established by long custom. In 7 R. C. L. p. 1003, it is said, citing Palmer v. Harris, 23 Okl. 500, 101 P. 852, 32 L. R. A. (N. S.) 401, 138 Am. St. Rep. 822, that--

"A well-settled rule of practice which has been silently acquiesced in, will not be set aside where it would probably cause great inconvenience and confusion in the practice, and where it can easily be changed by the legislature, if there is any necessity therefor."

In Palmer v. Harris, supra, the rule in question related to the issuance by trial courts of a supersedeas pending an appeal. Finding that that rule of practice had been generally followed by the courts of the state, the court said:

"While its correctness has never been brought to the attention of this court heretofore, it has been silently acquiesced in, and we think that it has become a too well settled rule of practice in this state to justify this court in making an extensive examination to ascertain whether it is supported by the weight of authorities, since to set it aside at this time would probably cause great inconvenience and confusion in the practice."

And in a footnote the annotator, under the heading stare decisis, says:

"A long-continued practical interpretation of a law by the courts of the state should be regarded as binding"--citing City of Detroit v. Detroit Ry. Co., 134 Mich. 11, 95 N.W. 992, 99 N.W. 411, 104 Am. St. Rep. 600.

In the course of a discussion of the doctrine of stare decisis, in 7 R. C. L. p. 1009, it is said that--

"In questions of practice a close adherence by a court to its own decisions, even though it may at times have erred, or decided differently from settled adjudications upon the subject, is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases."

This court judicially knows that the right of appeal and review de novo has been a determining factor in the selection by counsel in this state of the forum for litigation, and that today many causes are pending in the chancery court brought in that court with this long-recognized right in contemplation. Among the maxims compiled by Broom is cursus curle est lex curle--"the practice of the court is the law of the court"--and the learned author thus comments:

"Where a practice has existed it is convenient, except in cases of extreme urgency and necessity, to adhere to it, because it is the practice, even though no reason can be assigned for it; for an inveterate practice in the law generally stands upon principles that are founded in justice and convenience."

A principle so founded underlies the rule long established and followed governing the disposition of cases coming before this court in relation to the matter now under discussion. The "any material," rather than the "preponderance of," evidence rule was first applied in jury cases mainly because the jury saw and heard the witnesses and thus occupied a strongly presumptive vantage point of view. More than 50 years ago Nicholson, C.J., in Folwell v. Laird, 12 Heisk. 464, extended the rule to those cases in which the presiding judge was substituted for the jury, saying that--

"The same reasons which give weight to the verdicts of juries operate alike in support of the action of the judge in cases submitted to him on the facts."

And this rule has been since consistently followed. In Toomey v. Atyoe, 95 Tenn. 377, 379, 32 S.W. 254, the rule was applied to chancery causes in which a jury is demanded and then waived. And this court has declared this rule in large measure applicable to cases tried before a chancellor on oral testimony, whether in formal substitution for a jury or not recognizing that the reason applies equally, the trial court having had the opportunity to see and hear the witnesses. This was the holding in Beatty v. Schenck, 127 Tenn. 63, 152 S.W. 1033, and approved in recent unreported cases. The reason underlying the limitation of review in this court of the facts has thus far been consistently followed. We are now asked to abandon the reason, and adopt a construction of this statute providing for appeals which extends the limitation to all law cases heard in the chancery court, although on depositions only. For reasons already suggested and others to be mentioned, while fully appreciative of the saving to the appellate courts of time, labor, and responsibility, incident to such a departure from the present practice, we are constrained to decline...