Miller v. Kendrick

Mr. Chiee Justice Greek delivered the opinion of the Court. This was a suit for an. accounting. The defendant pleaded two written settlements. The hill was dismissed by the chancellor, and this decree affirmed by the court of appeals. Both of the lower courts upheld the settlements which were attacked. It is insisted by the defendant that this is a concurrent finding, which precludes this court from any investigation of the facts. The complainant urges that there is no concurrent finding. The chancellor expressed the opinion that the burden of proof was upon the complainant, impeaching the settlements, to show the invalidity thereof, and he found that the complainant had not carried this burden. The court of appeals was of opinion that the suspicious appearance of these papers shifted the burden of proof, and required the defendant to show their validity. Peevey v. Buchanan, 131 Tenn., 24, 173 S. W., 447. It is therefore submitted by the complainant that, inasmuch as the chancellor and the court of appeals applied different rules in weighing the evidence, there was no concurrence in their findings. This argument would doubtless have been good -as to a finding of the court of civil appeals and the finding of the chancellor. Chapter 82 of the Acts of 1907, creating the court of civil appeals, did not make the finding of facts by that court in chancery cases conclusive upon this court. Beginning with State ex rel. v. Lee, 124 Tenn., 385, 136 S. W., 997, and through a line of cases, this court held that *598 a concurrent finding of the court of civil appeals and of the chancellor was conclusive here, if there was any evidence to sustain it. This, however, was a mere rule of • practice. By chapter 100, Acts of 1925, creating the court of appeals, it was provided, section 12, that to the extent that the findings of the chancellor and court of appeals concur, they should, if there was evidence to support them, be conclusive upon this court, “but to the extent that they do not concur they shall be open to examination in that [supreme] court.” It follows, from this provision of the act of 1925, that a conflict in the findings of the chancellor and of the court of appeals must appear before this court is permitted to question a finding of fact made by the latter court. The act contemplates specific findings by each court on the controverted issues of fact, and a review of the facts by this court is only permissible to the extent that the findings of the lower courts are shown by the record to be contradictory. In the case before us the chancellor found that the evidence did not preponderate against the validity of the settlements. The court of appeals found that the evidence preponderated in favor of the validity of the settlements. The chancellor may have thought that proof was in equipoise, or he may have thought the preponderance was as found by the court of appeals, and expressed his finding in this negative way. There is no affirmative showing of a conflict in the findings ,of the two courts upon this issue of fact, and we cannot accordingly review the finding of the court of appeals. Petition for certiorari is accordingly denied.