Reynolds v. Hamilton , 18 Tenn. App. 380 ( 1934 )

ON PETITION FOR REHEARING. This cause is again before us on a petition for rehearing in which it is insisted that this court erred in certain finding of facts and conclusions of law, which will be hereinafter discussed.

1. It is insisted that the court erred in finding that the Davenport claim was developed in proof, it being insisted that parties agreed at the hearing that Davenport Bros. were setting up a claim, a balance of $435.09, secured by a mortgage not released of record, that they agreed to release the mortgage of record, and that $435.09 be deposited in court in lieu of the trust deed. Possibly this contention is well taken, but it is immaterial. The fact remains that it was developed (by agreement) at the trial that Davenport Brothers were claiming a balance of $435.09, secured by a registered mortgage not released of record; hence there is nothing in this contention.

2. It is next insisted that this court erred in holding that Davenport Bros. agreed to release of record the lien of their mortgage on the land and hold the lien on the $435.09 deposited in lieu of the deed of trust; it being insisted that Davenport Bros. had no lien on the money deposited.

The agreement entered of record at the trial in the lower court is as follows:

"He will retain in his hands the sum of $435.09 subject to the following agreement and understanding:

"Oscar Parks and wife, Emma Parks, by trust deed dated April 28, 1923, executed to H.E. Dryden, Trustee for L.E. Cowden, Phillips-Buttoroff Mfg. Co., Davenport Bros., Fly Mfg. Co., Volunteer Mfg. Co., to secure various items of indebtedness in said trust deed set out, and release has been made of said trust deed so far as the claims of the Fly Mfg. Co., L.E. Cowden, Volunteer Mfg. Co., and Phillips-Buttoroff Mfg. Co., are concerned, but it is alleged and claimed on behalf of Davenport Bros., that there is a balance due to said Davenport Bros., unpaid under said trust deed, the sum of $435.09. Now, it is agreed that this cause shall be referred to the clerk of this court to hear proof and report upon the following point of reference, to-wit:

"Is there a balance yet due and owing to the said Davenport Bros., on the amount secured to them under and by virtue of said trust deed, and if so, the amount thereof?

"It being also agreed and understood that if the clerk shall report that there is a balance due from the proof, to said Davenport Bros., and said report be confirmed and order finally entered in this cause directing the same to be paid, that it shall be paid out of said funds due to the said Mrs. Arreva Reynolds, and that $435.09 of said funds are here ordered to be retained in the hands of the clerk for said purpose, with right to either side to appeal and that with this understanding said J.W. Holman, Attorney for said Davenport Bros., agrees that the trust deed may be released of record, and agreeing that he will look to the funds in this cause in lieu of said trust deed."

We were merely stating the case, and not attempting to adjucate any lien on that fund in court, as the county court had no jurisdiction to make such adjudication. And this court dismissed that part of the case because the court had no jurisdiction to pass on the claim.

3. It is next insisted the question of title was not involved, and that the county court had jurisdiction of the case and might adjudicate the claim by agreement of the parties.

There is nothing in this contention. The county court has no jurisdiction to adjudicate claims, mortgages, or liens of over $50, as pointed out in our original opinion; and jurisdiction of the subject-matter cannot be conferred by consent. Teague v. Teague, 2 Tenn. Ch. App., 376.

"The question of jurisdiction of the court below should be considered on appeal though not raised by either party." Johnson v. Nelson, 341 Ill. 119, 173 N.E. 77, 88 A.L.R. 849.

4. It is next insisted that, under the agreement that the money be deposited in lieu of the deed of trust, the agreed reference was merely an agreement to refer the matter to arbitration, which could not be appealed from.

We think this contention is not sound. We think that the parties had found that they could not make a legal sale, as there was an outstanding mortgage not released of record, and resorted to this expedient as a step in the procedure of the case, and that it was in no sense an agreement to submit to arbitration.

5. It is next insisted that the county judge did not decree that there was a balance of $435.09 not paid on the Davenport claim. Davenport Bros. insisted that there was $435.09 still due on their claim secured by the deed of trust, and the county judge held that their claim had not been paid, but that they had been guilty of laches and were estopped to assert their rights and ordered the money paid to Mrs. Reynolds. This contention is about an entirely immaterial matter, and is therefore overruled.

6. It is next insisted that Davenport Bros. were not parties to the suit and had no right to appeal, and, if the court had no jurisdiction, then the appeal should be dismissed, and not dismiss the suit.

It was not necessary to make Davenport Bros. parties to the suit. As soon as it was developed in proof or by agreement of the parties at the trial that they had an outstanding mortgage, not released of record, and were claiming $435.09 balance due, the county court had no jurisdiction to sell the land, and the parties might by agreement release the mortgage lien of record, so that the court might have jurisdiction to sell, but the parties could not agree to give the county court jurisdiction to adjudicate whether the claim had been paid and to decide who was entitled to the fund deposited; hence this contention is not well made.

7. We think the contention that the sureties on the prosecution bond are not liable for the cost of the appeal is well made, and our former decree is modified in this respect, so as to relieve the sureties of the liability for the costs of the appeal. Code, section 9110; Physicians Mut. Health Accident Insurance Company v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381.

The petition for a rehearing, in all other respects, is denied.

Faw, P.J., and DeWitt, J., concur.