Stockley v. Cissna

119 Tenn. 135
CourtTennessee Supreme Court
DecidedSeptember 15, 1907
StatusPublished
Cited by20 cases

This text of 119 Tenn. 135 (Stockley v. Cissna) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stockley v. Cissna, 119 Tenn. 135 (Tenn. 1907).

Opinion

Mr. Justice McAlister

delivered the opinion of the Court.

This is an action of forcible entry and detainer. The •object of the bill is to recover the possession of two tracts of land situated in Tipton county, Tennessee. These tracts adjoin, but are described in the bill separately, for the reason that complainant’s title and right •of possession to each is derived from a different source. [140]*140The smaller of the two tracts comprises about one hundred and thirty-one acres, and is embraced in a tract of two thousand, acres originally granted in the year 1824 by the State of Tennessee to Simon Huddleston. The larger tract, comprising about 1,050 acres, adjoins the smaller tract on the north, and was originally granted by the State of Tennessee to John Trigg. The bill alleged that while complainant was in the quiet and peaceable possession of the two tracts of land, fully described in the bill by metes and bounds, the defendants had ousted him from possession, and had cut and removed from the land timber to the value of $20,000, as he is informed and believes. Complainant prayed to be restored to the possession of the land and for a decree against the defendants for the value of the timber' appropriated. On the hearing the chancellor pronounced a decree in favor of complainant, adjudging him entitled to the possession of the land in controversy, and ordering a reference to ascertain the amount of timber cut and removed from the land, and to ascertain the value thereof. The chancellor permitted the defendants to appeal from said decree, and the cause is now before this court, mainly on the assignments of error on behalf of the defendant W. A. Cissna.

We shall first notice the error' assigned on the refusal of the chancellor to order a removal of the cause on the petition of the defendant to the circuit court of the United States for the western division of the western district of Tennessee. The bill was filed June 10, 1903, [141]*141and publication ordered for tbe nonresident defendants to make tbeir appearance in tbe canse on or before tbe first Monday in August, 1903, and make defense to tbe bill. Tbe regular terms of court convened on tbe first Mondays in June and December. It thus appears that tbe first term of tbe court after tbe bill was filed was field on tbe first Monday in December; but, as already seen, the publication for tbe nonresident defendants required them to enter appearance on' a rule day in August, 1903. It appears that on October 17, 1903, the defendants filed tbeir petition for a removal of tbe cause, and a proper bond was tendered with tbe petition. On November 17, 1903, complainant filed a motion to dismiss tbe petition, for removal to tbe United States court on tbe ground that it was filed after tbe time defendants bad tbe right to file it under tbe act of congress. It thus appears that tbe ground upon which tbe petition for removal was denied was that it was filed unseasonably. Thereupon, on tbe 19th day of December, 1903, defendants applied for leave to file an amended petition for removal, which was disallowed by tbe court. Tbe petition, proceedings, and evidence touching tbe application for tbe removal were preserved of record by a bill of exceptions. Defendant Cissna assigns tbe following exceptions to tbe action of tbe court in refusing bis petition for removal:

“(1) Said petition was filed in time.
"(2) Tbe petition as amended, and which tbe court declined to allow to be filed, was filed after an amend[142]*142ment of the bill wag made which made the suit- an action, in ejectment, and therefore the defendants were entitled to a removal.
“(3) No motion was made to dismiss, because the petition was not filed in time.”

We find, however, that an examination of these questions is unnecessary, since the record shows that as a matter of fact the cause was removed to the United States circuit court, and by that court remanded to the State court. It appears from the record that, after the refusal of the chancellor to order a removal, counsel procured from the clerk and master a certified copy of the record, and filed it, together with a good and sufficient bond, in the United States circuit court at Memphis. This action operated, under the act of congress and the federal decisions, as a removal of the cause. It further appears that counsel for complainant appeared in the federal court and moved to remand the cause to the chancery court of Tipton county. After argument of counsel and consideration by the court, the cause wa»' ordered to be remanded to the chancery court of Tipton county, which was accordingly done on the 7th day of April, 1905. We think it very plain that the defendants had the full benefit of their petition for removal by the course adopted in filing a certified copy of the record in the United States court. Martin v. Baltimore & Ohio R. R., 151 U. S., 675, 14 Sup. Ct., 533, 38 L. Ed., 311.

The action of the United States circuit court on the [143]*143removal of the cause is, of course, final and conclusive on this court.

It is also assigned as error that the chancellor refused to grant defendants’ application for a continuance at the June term, 1905. It appears that the plea in abatement filed on behalf of defendant Cissna averred that the lands in controversy were situated in the State of Arkansas, and not in the State of Tennessee. Complainant joined issue on the plea in abatement. It appears that at the June term, 1904, the cause was continued by consent until the next December term of the court. The cause was again continued at the December term, 1904,. to the June term, 1905, when it was called for hearing on the plea in abatement. Counsel for defendant thereupon made application for a continuance, supported by affidavit. It is the established practice of this court not to interfere with the discretionary action of the trial court on the subject of continuance, unless it appears there has been great abuse of its. discretion. Womack v. State, 6 Lea, 152; Todd v. Wiley, 3 Humph., 576; Rhea v. State, 10 Yerg., 258; Fox v. State, 111 Tenn., 158, 76 S. W., 815; Railroad v. Voss, 109 Tenn., 722, 72 S. W., 983.

It appears that the plea in abatement was filed January 16, 1904, and the replication on February 22, 1904. The burden of proof to sustain this plea, of course, devolved upon the defendant, and under the rules of chancery practice four months were allowed defendants in which to take their proof, and the complainant was [144]*144entitled to two months thereafter in which to take his proof. At the December term, 1904, defendants had not taken their proof, and when the canse was called a continuance was asked, which was supported by affidavit. Continuance was allowed by the chancellor. At the June term, 1905, defendants had still failed to take their proof in support of the plea in abatement, and again requested a continuance. The court overruled the application, and, in view of the facts already stated, we are unable to perceive wherein the chancellor was guilty of an abuse of the discretion allowed him in such matters. The chancellor then, at the June term, 1905, proceeded to hear this plea in abatement, and overruled the same, adjudging that the lands in controversy were not in the State of Arkansas, but were situated in the State of Tennessee.

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Bluebook (online)
119 Tenn. 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stockley-v-cissna-tenn-1907.