Winters v. Allen

• Decision Date: 17 June 1933
• Citation: 62 S.W.2d 51
• Parties: WINTERS et al. v. ALLEN et al.
• Court: Tennessee Supreme Court

Page 51

62 S.W.2d 51

WINTERS et al. v. ALLEN et al.

Supreme Court of Tennessee.

June 17, 1933.

Appeal from Chancery Court, Carroll County; Tom L. Rye, Chancellor.

Suit by Ross Winters and others against Valley Allen and others. From a decree dismissing the bill, the complainants appeal.

Affirmed.

J. T. Peeler, of Huntingdon, and A. A. Abercrombie, of Brewston, for appellants.

Maddox & Maddox, of Huntingdon, and J. R. Presson, of Hollow Rock, for appellees.

CHAMBLISS, Justice.

This bill was brought to enjoin an execution issued out of the law court of Carroll county on allegations that the judgment was not rendered by either the regular circuit judge or a special judge lawfully appointed or selected, commissioned or sworn, and was therefore void. The bill also charges that the minute record of the judgment was never signed, either by the regular or acting judge who tried the case. The chancellor sustained a motion and dismissed the bill. The motion to dismiss challenged the bill for want of equity on its face, and particularly relied on the following recitation contained in the minute recital of the trial court, set forth in the bill, to wit:

"* * * And it being agreed to by the parties, to this suit, both the plaintiff and the defendants, that the said Hon. J. C. R. McCall should try said cause, thereupon the said cause was tried on this March 2, 1931, by the said J. C. R. McCall, Special Judge, etc., without the intervention of a jury, upon the warrant," etc.

The record does not contain any opinion or decree recital stating the reasoning of the learned chancellor but his action in dismissing this injunction bill may be sustained on several cumulative grounds.

It appears from the bill that, when the case was called for trial in the circuit court, Hon. J. C. R. McCall, of the Carroll bar, was sitting as judge in the absence of Circuit Judge Bond. Counsel for defendants there, complainants here, appeared before him and without objection to the authority of the acting judge presented to him an application for a continuance of the case, supported by affidavit, which was overruled, and the bill fails to show that, either during the trial of the case, or at any later time, any question was made as to the regularity of the appointment or selection or authority of the acting judge. So that, even if it should be conceded that the consent of the parties is not conclusively or bindingly shown by the minute entry already quoted because unsigned, or for other reasons, and that the judgment is open to this collateral attack at all, it is clear that the situation complained of, from which relief is sought by this application...