Reynolds v. Hamilton

CROWNOVER, J. The motion to dismiss the appeal because it was prayed, granted, and perfected after the time for appeal had expired is overruled. The decree was rendered January 28, 1933, and a petition for a rehearing was filed on that same date, but was not overruled until April 17, 1933, at which time an appeal was prayed and granted, and bond was filed, but the decree was entered as of March 18, 1933, nunc pro tunc. The entry of a motion for a new trial suspends the judgment until it is disposed of, and a petition to rehear likewise suspends the decree pending the disposition of the petition to rehear. Wright v. Dorman, 155 Tenn., 189, 291 S. W., 1064. The time for an appeal will be computed from the date of the entry of a nunc pro tunc decree, and not the prior date when the original decree was made. Lillard v. Mitchell (Tenn. Ch. App.), 37 S. W., 702. The decree shows that the petition to rehear was filed in January, 1933, and was copied into the decree of April 17, 1933, entered nunc pro tunc. Mrs. Arreva Reynolds, the owner of a one-third interest in certain lands in Lincoln county, filed a petition in the county court of that county to have said lands sold for partition. The bill was filed against J. P. Hamilton and R. R. Hamilton, each being the owner of a one-third interest, and B. E. Holman, trustee under a deed of trust conveying Mrs. Reynolds’ one-third interest in said land to secure a debt of $800, and prayed for an order of reference to the clerk to ascertain the incumbrances and for sale of the land and partition of the proceeds, but H. E. Dryden, trustee in an unsatisfied second deed of trust on record on said land to *383 secure certain creditors, including appellants, Davenport Bros., was not made a party to this suit. On an order of reference, tbe clerk took proof, and reported to tbe court tbat there were no incumbrances except tbe first deed of trust to B. B. Holman, trustee, described in tbe bill. Whereupon tbe court decreed a sale of the land, and later tbe clerk reported that the land was sold by him for $5,580 cash. Thereupon a decree was entered confirming the sale, divesting and vesting title, and the funds were ordered to be distributed, after paying the B. E. Holman mortgage debt, with the exception of $435.09 of the interest of petitioner Mrs. Reynolds, which was held in court by agreement of the parties for the following reason: During the taking of proof, it developed that there was an unreleased second mortgage or deed of trust on Mrs. Reynolds’ one-third interest in said land in favor of Davenport Bros. This deed of trust was executed by Oscar Parks and wife to H. E. Dryden, trustee, to secure $1,202.80 that they owed to Davenport Bros, and other amounts due other creditors, which complainant contended had been paid in full, but Davenport Bros, insisted that there was a balance of $435.09 still due and unpaid; hence it was agreed of record in the decree that the land be sold and $435.09 should be held in court subject to the lien of Davenport Bros.’ mortgage, and that the deed of trust on the land be released of record, and that another reference be ordered for the clerk to take proof and report whether this debt to Davenport Bros, secured by that deed of trust had been paid. Proof was taken and report made by the clerk that Parks owed a balance of $234.79 to Davenport Bros, on said mortgage indebtedness. Whereupon the county judge decreed that the balance due on said debt to Davenport Bros, was $435.09, but he further decreed that Davenport Bros, had been guilty of laches, therefore they were estopped to assert their rights under the deed of trust, and that the sum of $435.09 retained in court should be paid to Mrs. Reynolds. Davenport Bros, excepted to this decree, filed a petition for a rehearing, which was overruled, and then appealed to this court and assigned errors. Appellants, Davenport Bros., were not made parties defendant, but they appeared to defend and took considerable proof on the validity of their claim, and, judgment having been rendered against them, they had a right to appeal, as the judgment was void. Gibson’s Suits in Chancery, sec. 1263; Newman Cigar Co. v. Murphy, 2 Tenn. App., 321. On examination of the record, we are of the opinion that the county court had no jurisdiction to adjudicate the claims and in- *384 cumbrances and to settle the questions of title of the property in suits for partition or for sale for partition. "Power to adjudicate land titles does not exist in the county court and cannot be conferred by consent of parties; and the rule that the filing of an answer is a waiver of objection to the jurisdiction, has no application.” Sizer’s Pritchard on Wills & Executors, 960, sec. 814; Walsh v. Crook, 91 Tenn., 388, 19 S. W., 19; Linnville v. Darby, 1 Baxt., 307; Dean v. Snelling, 2 Heisk., 484; Galyon v. Gilmore, 93 Tenn., 676, 28 S. W., 301; Black v. Black, 134 Tenn., 520, 184 S. W. 27. "The County Court has no jurisdiction of a case of partition where it is necessary as a preliminary to settle the title.” Dean v. Snelling, supra; Walsh v. Crook, supra; Apple v. Owens, 1 Tenn. Ch. App., 135, 145. "The jurisdiction of the county court, under the law authorizing the sale by that tribunal of the estates of decedents, for partition, etc., is limited to the making and completion of the sale alone. Young v. Shumate, 3 Sneed, 369. "The jurisdiction of the county court, under the law authorizing the sale, by that tribunal, of the property of decedents, for partition, etc., is limited, alone, to the making and completion of the sale. After such sale has been completed, by the confirmation of the import, if any matters of equity exist, or should arise, entitling the purchaser to be relieved against the payment of the purchase money, resort must be had to a court of equity. Bond v. Clay, 2 Head, 379, 380.” 9 Mickie’s Digest of Tenn. Reports, 711. Jurisdiction cannot be waived by an answer or consented to where the title or equities in the land are involved. Dean v. Snelling, supra; Galyon v. Gilmore, supra; Jordan v. Jordan, 145 Tenn., 403, 239 S. W., 423. We are of the opinion that the sale of the land and its confirmation was valid, for the reason that the Davenport deed of trust was released of record at the time, and there existed no controversy about the title; but we are of the opinion that the county court had no jurisdiction to pass on the question as to the balance due on the Davenport debt, as the county court is given jurisdiction to enforce mortgages only where the amount is under $50. Code, section 10232. The county court is a court of special and limited jurisdiction, and has only such jurisdiction and powers as are conferred on it by statute. Brewer v. Griggs, 10 Tenn. App., 379, 394; The Judges’ Salary Cases, 110 Tenn., 388, 75 S. W., 1061; Nashville & K. Railway Co. v. Wilson County, 89 Tenn., 609, 15 S. W., 446. Its jurisdiction is somewhat similar to that of justices of the peace. They have no jurisdiction except that expressly conferred on them by statute. Vanbibber v. Vanbibber, 10 Humph., 53, 55. A justice’s judgment is void where the want of jurisdiction *385 appears upon the face of tbe record. Morrow v. Calloway, Mart. & Y. (8 Tenn.), 240; Harris v. Hadden & Co., 7 Lea (75 Tenn.), 214; Summar v. Jarrett, 3 Baxt., 23, 25. If it is manifest from the papers or judgment that the justice had no jurisdiction, the appellate court will, on appeal, dismiss the cause, although no motion to dismiss was made in the court below. White v. Buchanan, 6 Cold., 32; Harris v. Hadden, 7 Lea, 217. ' The appellate court, on appeal from the county court, has unly such jurisdiction as the county court had. Dean v. Snelling, supra. Where the court has no jurisdiction of the subject-matter, the question may be raised at any time, by either the parties or the court. Baker v. Mitchell, 105 Tenn., 610, 59 S. W., 137; Swift & Co. v. Warehouse Co., 128 Tenn., 82, 98, 99, 158 S. W., 480. It results that the decree adjudicating the incumbrances and the balance due Davenport Bros, will be set aside, and the suit as to Davenport Bros.’ claim is dismissed at petitioner’s cost. The cost of the cause below incident to the sale of the land will remain as adjudged below, but the balance of the cost, including the cost of the appeal, is adjudicated against Arreva Reynolds and the sureties on her prosecution bond. Faw, P. J., and DeWitt, J., concur.