Summers v. Kollock

1 Tenn. App. 142, 1925 Tenn. App. LEXIS 21

• Court: Court of Appeals of Tennessee
• Decided: August 8, 1925
• Status: Published

Opinion

FAW, P. J.

The bill in this case was filed under the Declaratory Judgments Act of 1923, ch. 29, to obtain a construction of certain provisions of the will of R. IT. Bell, deceased. No issue of fact arises on the record. By their pleadings the parties submitted to the court the question as to the legal construction and effect of certain provisions of said will, and no proof' was taken. The chancellor’s decree was favorable to the complainants, and the defendant appealed to the Court of Civil Appeals.

By the terms of the recent "act to reorganize the appellate court system.” etc., effective May 1, 1925 (Laws 1925, ch. 100) appellate jurisdiction of all "cases which have been finally determined in the iower court on demurrer or other method not involving a review -or determination of the facts, or in which all of the facts have been stipulated, ” is reserved to the Supreme Court.

It is evident that no issue of fact was involved in the case presented to the chancery court, and that the casé was "finally deter-minded in the lower court” by a "method not-involving’ a review or determination of the facts. ’ ’ This court therefore has no jurisdiction of the appeal.

Section 17 of the aforesaid "act to reorganize the appellate court system” provides that "all cases in the Court of Civil Appeals on May 1, 1925, that have not been disposed of by that Court, . . . shall be transferred to and disposed of by the appellate court having jurisdiction thereof under the provisions of this act.”

The record in the instant case was filed in the Court of Civil Appeals on June 4, 1924, and the-case had not been heard or "disposed of” oh May 1, 1925.

The ease was submitted as on brief May 22,1925, and counselwere permitted to withhold the record for the preparation of briefs; so that the state of the record touching the question of jurisdiction was not known to the court until the return of the record and briefs, which was after June 15,1925.

An order will be entered transferring the ease to the Supreme Court.

All concur, except Clark, J., absent.

Note. The Supreme Court took jurisdiction and tried this case on the record, thereby impliedly affirming the foregoing opinion.