McAllester v. McAllester

396 S.W.2d 363, 217 Tenn. 226, 21 McCanless 226, 1965 Tenn. LEXIS 536

• Court: Tennessee Supreme Court
• Decided: September 7, 1965
• Status: Published

Opinions

Mr. Justice White

delivered the opinion of the Court.

This case was commenced as a divorce action in the Chancery Court of Hamilton County. Mrs. McAllester charged her husband with cruel and inhuman treatment and also charged that he had failed to support her. In connection with the latter charge she says that the defendant had not contributed to her support, or the support of their children, during their forty-one years of marriage. Her charges of cruel and inhuman treatment were that her husband had been ugly and abusive and on many occasions had threatened'both Mrs. McAllester and their children with serious bodily harm.

After hearing the proof, the chancellor found that the defendant was guilty of “cruel and inhuman treatment” toward complainant and awarded her an absolute divorce. The decree upon said award was entered on the minutes on the 8th day of December, 1964. The defendant was ordered to pay all of the costs of the cause. There was no exception taken to the action of the court by the defendant.

A petition to rehear was filed in which it was said that: (1) the credible evidence preponderated against the finding of the court; (2) the court erred in refusing to grant the defendant a jury trial; (3) that the court erred in refusing or denying a mistrial upon motion of defendant’s solicitor; (4) that the court erred in refusing to permit the defendant’s solicitor to cross-examine witnesses upon matters which they had been previously cross-examined by the defendant’s first solicitor, Grus A. Wood, Jr.; and, finally, that the court erred in refusing the rule of exclusion to those witnesses who had testified on the first day of the trial when the defendant was represented by Grus A. Wood, Jr. The petition to rehear was signed by D. L. Halladay, the new solicitor for the defendant.

In due course the petition to rehear was overruled and the chancellor stated:

Having considered the matters raised by the petition, the court is of the opinion that said rehearing should be and the same hereby is refused.

To which ruling the defendant excepts and prays an appeal to the next term of the Court of Appeals sitting in Knoxville, which appeal is granted, etc.

A motion to dismiss the appeal was filed by Mrs. Mc-Allester in the Court of Appeals and in support thereof counsel calls attention to the fact that the defendant excepted only to the chancellor’s action in refusing a rehearing and appealed therefrom. It was contended in the Court of Appeals that the action taken by the chancellor on the petition to rehear was the only matter before that court. The final decree which granted the divorce was not excepted to and no appeal was taken therefrom.

In Gribson’s Suits in Chancery, Volume 2, p. 651, the following language appears:

When a motion for a rehearing is denied and the party desires to appeal, the appeal should be prayed and granted from doth the original decree and the order denying the motion for a rehearing.

In a note to this section there appears this statement:

Where appeal is taken only from order denying a rehearing there is nothing before the appellate Court for a review.

The decision of the Court of Appeals in the case of McClister v. Milligan, 1 Tenn.App. 258 is cited as the case absolutely on all fours with, the case at bar in that no broad appeal was taken, the appeal being limited to the “action of the court in overruling and denying the petition to rehear. ’ ’

In that case Judge Faw discussed the matter fully, pointing out that the order of the Chancery Court refusing to set aside an appealable decree is not appealable and that the appeal should have been from the original decree. The Court then dismissed the appeal in that case.

Also, in the case of Capshaw v. Town of Cookeville, et al., 185 Tenn. 96, 203 S.W.2d 369, Mr. Justice G-ailor said:

Where, as here, exception is taken and appeal perfected only from the action of the Chancellor in denying a rehearing, and no appeal is taken from the decree, final on the main issues and as such appealable # * #, the appeal which is expressly limited and addressed only to the action of the Chancellor in denying a rehearing, does not bring up the original decree nor the entire record. 185 Tenn. at 100, 203 S.W.2d at 371.

Mr. Justice G-ailor then referred to the opinion of Judge Faw in the McClister case with approval.

Based upon the motion, the Court of Appeals, in an opinion written by Judge Cooper, well reasoned, sustained the motion and dismissed the case. He quoted with approval from the case written by Judge Faw, and also the case written by Justice G-ailor.

He called attention to the fact that since the case here was tried by the chancellor without a jury, it followed that no motion for a new trial or petition to rehear was required, and that an appeal taken solely from the overruling of such motion, or petition, was not sufficient to bring the whole case before the court.

While we agree with the conclusion of the Court of Appeals in sustaining the motion, an examination of the evidence shows the preponderance thereof to be in favor of the action of the chancellor in granting the divorce. And, under such circumstances the Court of Appeals would have been justified in sustaining the holding of the chancellor. T.C.A. sec. 27-303 provides that there shall be “a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.” We do not think the preponderance is otherwise.

We are satisfied with the opinion of the Court of Appeals and, therefore, deny the application for the writ of certiorari.

Burnett, Chiee Justice, and Dyer, Chattin and Cre-son, Justices, concur.