Melody v. Hamblin

On Petition for Additional Finding of Facts and for a Rehearing. On a former day of the term we affirmed the judgment of the circuit court in this case. Plaintiff in error, John Melody, executor, has filed a petition asking the court (1) to find as facts certain matters of evidence set out in twenty-eight numbered paragraphs of the petition, and seeking (2) a rehearing upon our holding that the contestants, Neal Hamblin and Ernest Hamblin, were not estopped to contest the validity of the paper writing offered by the proponent as the will of Julia Sunday Hamblin.

(1) The statute, Code, section 10620, requiring this court to make written findings of fact, contemplates that the court shall find only the ultimate, determinative facts, and not mere matters of evidence. Badger v. Boyd, 16 Tenn. App. 629, 645,65 S.W.2d 601; Julian v. American National Bank, Tenn. App.,106 S.W.2d 871, 887. By its terms this statute applies only to "cases tried on the facts in a chancery court," and not to cases where there has been a trial by jury in the circuit court; and in the latter sort of cases it is the province of this court not to make findings of fact, but merely to determine whether there is any material evidence to take the case to the jury or to support the verdict, as the question may be. DeKalb County v. Tennessee Electric Power Co., 17 Tenn. App. 343, 353, 67 S.W.2d 555; Whitehurst v. Howell, 20 Tenn. App. 314, 329,98 S.W.2d 1071.

(2) Petitioner states that the conduct of contestants was never relied on by him as constituting an estoppel in pais against their right to contest the will; and he quotes from his supplemental brief as follows:

"This is not a case of a technical estoppel, but is based upon the broad proposition that the contestants by their conduct and dealings with the testatrix in her lifetime are now concluded and precluded from asserting the contrary. They cannot blow hot and cold."

In our former opinion we considered whether contestants' conduct constituted either an estoppel in pais or a judicial estoppel, and concluded it could constitute neither. Can conduct which is insufficient to constitute an estoppel be given all the effect of an estoppel under some other name? We know of no principle of law by which this may be done, and petitioner points out none.

The petition makes no new argument, cites no new authority, and points out no material fact as overlooked, and, therefore, should be denied. Badger v. Boyd, 16 Tenn. App. 629, 645,65 S.W.2d 601; Louisville N.R.R. Co. v. U.S. Fidelity Guaranty Co.,125 Tenn. 658, 691-693, 148 S.W. 671; see 167 Tenn. 702, 703.

For these reasons the petition is denied and dismissed at petitioner's cost.

Faw, P.J., and Crownover, J., concur.