Chapter 1
Bills In Chancery

Part 1
General Provisions

21-1-101. Application to all equitable proceedings.

This title applies to all equitable proceedings in any other court.

Code 1858, § 2752; Shan., § 4443; Code 1932, § 8569; T.C.A. (orig. ed.), § 21-101.

Compiler's Notes. See the Tennessee rules of civil procedure for other provisions governing chancery proceedings.

Cross-References. One form of action, Tenn. R. Civ. P. 2.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, §§ 2, 46, 55.

Comparative Legislation. Equitable proceedings.

Ark.  Code § 16-13-301 et seq.

Miss.  Code Ann. § 9-5-131 et seq.

Cited: Bradford v. Stephens, — S.W.3d —, 2011 Tenn. App. LEXIS 529 (Tenn. Ct. App. Sept. 27, 2011).

NOTES TO DECISIONS

1. Equitable Proceeding in Law Court.

In a proceeding in circuit court by employee to set aside a lump settlement for compensation the trial court was entitled to grant a discretionary appeal to employer upon overruling of employer's demurrer since an equitable proceeding was involved and rules of chancery applied. Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

21-1-102. Oaths to bills.

Bills required to be under oath may be sworn to in the state before any judge, clerk of a court, general sessions judge or notary public, whose attestation shall be deemed evidence of the fact. Bills required to be under oath may be sworn to out of the state, before a notary public, or a commissioner for this state, whose attestation shall be accompanied by the notary public's or commissioner's seal of office, or before a judge of the state, whose official character shall be attested by the clerk of the court in which the judge presides.

Code 1858, §§ 4330, 4331 (deriv. Acts 1801, ch. 6, § 11; 1826, ch. 19, § 1); Shan., §§ 6140, 6141; Code 1932, §§ 10411, 10412; impl. am. Acts 1959, ch. 109, § 16; impl. am. Acts 1961, ch. 329, § 1; impl. am. Acts 1963, ch. 345, § 1; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), § 21-106.

Cross-References. Signing of pleadings, Tenn. R. Civ. P. 11.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 110.

Tennessee Jurisprudence, 1 Tenn. Juris., Affidavits, § 2.

NOTES TO DECISIONS

1. Bill for Divorce.

Bill for divorce is “bill in chancery” within this section providing that oath may be administered out of this state. Carter v. Carter, 28 Tenn. App. 478, 191 S.W.2d 451, 1944 Tenn. App. LEXIS 80 (Tenn. Ct. App. 1944).

2. Mandamus Petition.

A bill or petition for mandamus may, notwithstanding § 18-1-108, be sworn to before clerk and master. State ex rel. McMurray v. Arnwine, 138 Tenn. 227, 197 S.W. 564, 1917 Tenn. LEXIS 24 (1917).

3. Foreign Official.

This section authorizes a verification before the designated officials of other states of the United States only; it does not authorize an oath before an official of a foreign country even though he purports to hold one of the specified positions. McFerrin v. McFerrin, 28 Tenn. App. 552, 191 S.W.2d 946, 1945 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1945).

21-1-103. Right to trial by jury.

Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases involving complicated accounting, as to such accounting and those elsewhere excepted by law or by this code, and all the issues of fact in any proper cases, shall be submitted to one (1) jury.

Acts 1976, ch. 436, § 1; T.C.A., § 21-1011.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 8, 202, 216.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-39.01-1, 1-49.01-1.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, §§ 56, 60-65, 71; 17 Tenn. Juris., Jury, §§ 2, 6.

Law Reviews.

Equity — Right to Jury Trial in Equity Cases, 22 Tenn. L. Rev. 230.

Jury Trial in Chancery Court in Tennessee, 7 Vand. L. Rev. 393.

Laches at Law in Tennessee, 28 U. Mem. L. Rev. 211 (1997).

Tennessee Procedure — Right to Jury Trial in Chancery — Purely Equitable Suit, 7 Vand. L. Rev. 299.

Cited: Pan-Am Southern Corp. v. Cummins, 156 F. Supp. 673, 1957 U.S. Dist. LEXIS 2844 (D. Tenn. 1957); State ex rel. Moretz v. Johnson City, 581 S.W.2d 628, 1979 Tenn. LEXIS 435 (Tenn. 1979); Anderson County Quarterly Court v. Judges of 28th Judicial Circuit, 579 S.W.2d 875, 1978 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1978); Hopson v. Southern American Ins. Co., 618 S.W.2d 745, 1980 Tenn. App. LEXIS 426 (Tenn. Ct. App. 1980); Bynum v. Hollowell, 656 S.W.2d 400, 1983 Tenn. App. LEXIS 602 (Tenn. Ct. App. 1983); Trimble v. Sonitrol of Memphis, Inc., 723 S.W.2d 633, 1986 Tenn. App. LEXIS 3230 (Tenn. Ct. App. 1986); Smyrna v. Ridley, 730 S.W.2d 318, 1987 Tenn. LEXIS 905 (Tenn. 1987); Wright v. Quillen, 909 S.W.2d 804, 1995 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1995); Thompson v. Young (In re Estate of Thompson), 952 S.W.2d 429, 1997 Tenn. App. LEXIS 2 (Tenn. Ct. App. 1997); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 1998 Tenn. LEXIS 293 (Tenn. 1998); McInturff v. Neeseman, 986 S.W.2d 11, 1998 Tenn. App. LEXIS 648 (Tenn. Ct. App. 1998); Keisling v. Keisling, 196 S.W.3d 703, 2005 Tenn. App. LEXIS 747 (Tenn. Ct. App. 2005).

NOTES TO DECISIONS

1. Procedure.

To the extent proceedings in chancery are not covered under the rules of civil procedure, the effect of this section is to restore the previous law, otherwise, the rules of civil procedure are controlling. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

2. Verdict Binding on Judge.

The jury verdict provided under this section is binding upon the judge, and not of an advisory nature. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

3. Special Verdicts.

In chancery proceedings where the special verdict of the jury contains conclusions of law which are inconsistent with findings of fact, it is for the jury to determine the facts and the trial judge to apply the appropriate principles of law to those facts. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

Where a jury verdict in chancery proceedings is a special verdict, Tenn. R. Civ. P. 49 governs their use. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

4. Parties Entitled to Trial by Jury.

A party to an action brought under the Education Professional Negotiations Act, (§§ 49-5-60149-5-604) or the Open Meetings Act, (§§ 8-44-1018-44-106) is entitled to a jury trial. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

Tenn. Code Ann. § 21-1-103 provides a broad statutory right to a jury trial in equity cases. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Because the Ouster Act, T.C.A. § 8-47-101 et seq., did not expressly state that plaintiffs in an ouster suit were excepted from trial by jury, the trial court erred when it precluded citizens from trial by jury on the disputed material facts in their action seeking the removal of county commissioners, since T.C.A. § 21-1-103 extended the right to trial by jury to all parties in suits in chancery. State ex rel. Wolfenbarger v. Moore, — S.W.3d —, 2010 Tenn. App. LEXIS 109 (Tenn. Ct. App. Feb. 12, 2010).

Property owners who challenged the validity of a municipal annexation ordinance in a declaratory judgment action were entitled to a jury trial. State ex rel. Allen v. City of Newport, 422 S.W.3d 567, 2013 Tenn. App. LEXIS 393 (Tenn. Ct. App. June 18, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 968 (Tenn. Nov. 13, 2013).

Appellate court erred in holding that the Governmental Tort Liability Act (GTLA) applied to a former police chief's age-discrimination claims against a city under the Tennessee Human Rights Act (THRA) because the THRA evinced an unmistakable legislative intent to remove whatever immunity a governmental entity might have had under the GTLA, the THRA clearly established a right to trial by jury on THRA claims filed in chancery court. Sneed v. City of Red Bank, 459 S.W.3d 17, 2014 Tenn. LEXIS 962 (Tenn. Dec. 2, 2014).

5. Parties Not Entitled to Trial by Jury.

There is no right to trial by jury in a proceeding conducted pursuant to Tenn. Code Ann. § 44-17-120, which provides a summary procedure for the destruction of vicious or rabid dogs. State v. Hartley, 790 S.W.2d 276, 1990 Tenn. LEXIS 215 (Tenn. 1990).

There is no right to a jury trial prior to the issuance of an order of protection issued under the Domestic Abuse Act, T.C.A. § 36-3-601 et seq.Clark v. Crow, 37 S.W.3d 919, 2000 Tenn. App. LEXIS 492 (Tenn. Ct. App. 2000).

In a dispute over a business partnership, a trial court did not err in declining to grant a jury trial because the matter involved a complicated accounting of the partnership and judicial dissolution of said partnership, and pursuant to T.C.A. § 21-1-103, no right to trial by jury existed. Bradford v. Stephens, — S.W.3d —, 2011 Tenn. App. LEXIS 529 (Tenn. Ct. App. Sept. 27, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 86 (Tenn. Feb. 16, 2012).

Legal basis identified by the trial court did not justify denying the son a jury trial on this issue of the validity of the antenuptial agreement, but the husband's interest in the outcome of this litigation, without more, was not sufficient to create an issue for a jury, and the denial of the request for a jury trial was affirmed. In re Estate of Hillis, — S.W.3d —, 2016 Tenn. App. LEXIS 148 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 479 (Tenn. June 23, 2016).

Trial court properly granted the hospital's motion for a non-jury trial, as appellant was not entitled to a jury trial in this retaliation case; it was originally filed in the circuit court, and the statute did not confer a right to a jury trial in such cases. Terry v. Jackson-Madison Cty. Gen. Hosp. Dist., 572 S.W.3d 324, 2018 Tenn. App. LEXIS 372 (2018).

Trial court did not err in granting a hospital's motion for a nonjury trial because the employee was not entitled to a jury trial in her retaliation claim under the Tennessee Human Rights Act. Terry v. Jackson-Madison Cty. Gen. Hosp. Dist., — S.W.3d —, 2018 Tenn. App. LEXIS 372 (Tenn. Ct. App. June 28, 2018).

Decisions Under Prior Law

1. Constitutional Guaranty — Scope.

The constitutional guaranty of jury trial (Tenn. Const. art. I, § 6) refers to the right in common law actions, not to suits of an equitable nature. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874); Jackson, Morris & Co. v. Nimmo, 71 Tenn. 597, 1879 Tenn. LEXIS 120 (1879); Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920); Third Nat'l Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915, 1943 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1943); Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

The constitutional provision that the right of trial by jury shall remain inviolate does not guarantee the right of trial by a jury in any cause of which the chancery court has jurisdiction, exercised according to the forms by which such courts are accustomed to administer remedies. Exum v. Griffis Newbern Co., 144 Tenn. 239, 230 S.W. 601, 1921 Tenn. LEXIS 33 (1921).

The constitutional guarantee of jury trial (Tenn. Const. art. I, § 6) refers to civil action and criminal prosecutions at common law but does not extend to suits in an equitable nature where such right is conferred only by statute. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986); Bauman v. Smith, 499 S.W.2d 935, 1972 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1972).

Where the chancery court exercises concurrent jurisdiction with the circuit court in law cases, or where the chancery court is authorized to try cases in which there is a constitutional or special statutory right to a jury trial, a jury may be properly demanded. Ashe v. State, 518 S.W.2d 360, 1975 Tenn. LEXIS 719 (Tenn. 1975).

Unless the general assembly acts to the contrary, the general rule of law in Tennessee is that a party to a suit of an inherently equitable nature in the chancery court cannot demand a jury trial as a matter of right. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976).

2. Scope of Statutory Right.

Under the provisions in this article, either party has a right to a jury to try and determine any proper issue of fact involved in any case pending in the chancery court. Allen v. Saulpaw, 74 Tenn. 477, 1880 Tenn. LEXIS 276 (1880).

In the absence of rule of court regulating the matter, the demand of a jury to try issues of fact in chancery court may be made at any time before the cause is heard by the chancellor. Stepp v. Stepp, 11 Tenn. App. 578, — S.W.2d —, 1930 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1930).

This section is the only source of right to trial by jury in chancery. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

The constitutional guaranty of trial by jury refers only to actions at law, but where suits are tried in equity the right of trial by jury exists only to the extent provided by statute. Third Nat'l Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915, 1943 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1943).

The phrase in this section excepting “those elsewhere excepted by law or by provisions of this Code” excepts from the right to jury trial only those cases which are excepted by the provisions of the Code and those statutory exceptions not found in the Code, or such as by their very nature must necessarily be deemed inappropriate and not a proper case to be submitted to the jury, or cases of such a complicated and intricate nature involving mixed questions of law and fact not suitable for solution by a jury. Moore v. Mitchell, 205 Tenn. 591, 329 S.W.2d 821, 1959 Tenn. LEXIS 398 (1959).

In suit to impress an equitable lien where there was no conflict in evidence in the trial, court of appeals could not reverse the cause for jury trial. Vick v. Vick, 60 Tenn. App. 600, 449 S.W.2d 717, 1968 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1968).

Lines of cases holding that jury verdicts in chancery cases are advisory only and lines of cases holding that chancery jury verdicts have the same force and effect as jury verdicts at law are both correct, for the correct rule depends upon (1) the nature of the litigation, (2) the statutes in existence at the time, (3) whether the jury was called for by either of the parties or by the chancellor. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976).

3. —Common Law Rule.

There was no right at common law to a jury in an equity cause. Marler v. Wear, 117 Tenn. 244, 96 S.W. 447, 1906 Tenn. LEXIS 44 (1906); State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352, 1916 Tenn. LEXIS 49 (1916).

There was no right at common law to a jury in an equity cause. Bauman v. Smith, 499 S.W.2d 935, 1972 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1972).

Following the repeal of the former section a party to a lawsuit of an equitable nature could not demand a jury as a matter of right, and a chancellor, or a circuit or criminal court judge sitting as a chancellor in such an action, could submit issues of fact to a jury as he deemed appropriate but was not bound by the jury finding on the issues submitted. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

4. Construction and Interpretation.

The construction of the words “and all issues of fact in any proper case shall be submitted to one jury” is part of the legislative intent to make jury trials in chancery court conform to practice of common law, in that all issues of fact must be submitted to one jury and not tried piecemeal and litigants have no greater rights by jury trial in chancery court than litigants have in jury trial at common law. Bauman v. Smith, 499 S.W.2d 935, 1972 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1972).

5. —“Either Party” — Construed.

“Either party” must be construed to mean all parties having similar interests, in the sense of an entire party complainant or defendant, or all the complainants or all the defendants. It was not intended to split a single cause of action up into two separate trials, one before the court and the other before a jury. Burns v. Nashville, 142 Tenn. 541, 221 S.W. 828, 1919 Tenn. LEXIS 80 (1920).

In a suit by the taxpayers of the city against the mayor and others on account of mismanagement, embezzlement, and the illegal letting of contracts, two defendants were not entitled to a trial by jury where the other defendants had answered without demanding a jury trial. Burns v. Nashville, 142 Tenn. 541, 221 S.W. 828, 1919 Tenn. LEXIS 80 (1920).

The chancellor may refuse to submit issues that are of a complicated nature which because of peculiar rules or other requirements may be determined by chancellor. Arrants v. Sweetwater Bank & Trust Co., 55 Tenn. App. 631, 404 S.W.2d 253, 1965 Tenn. App. LEXIS 268 (Tenn. Ct. App. 1965).

6. —Material Fact in Dispute.

Unless a material fact is in dispute, the right to jury trial does not exist. De Rossett Hat Co. v. London Lancashire Fire Ins. Co., 134 Tenn. 199, 183 S.W. 720, 1915 Tenn. LEXIS 158 (1916); Litterer v. Wright, 151 Tenn. 210, 268 S.W. 624, 1924 Tenn. LEXIS 60 (1925); Union City & Obion County Bar Ass'n v. Waddell, 30 Tenn. App. 263, 205 S.W.2d 573, 1947 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1947).

Application for a jury trial is not to be denied where the issue is whether a deed is a mortgage. Simmons v. Hart, 6 Tenn. Civ. App. (6 Higgins) 400 (1915).

A party does not lose his right to a trial by jury upon determinative issues because he has not submitted an additional determinative issue favorable to his opponent. Such opponent is entitled to submit such other issue. First Nat'l Bank v. Hartsell, 14 Tenn. App. 578, — S.W.2d —, 1932 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1932).

7. Trial Without Jury.

8. —Complicated Accounts.

The chancery court has inherent jurisdiction in equity over a suit for accounting, and suits involving claims and counterclaims, where the accounts are too complicated to be dealt with in a court of law. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

The foundation of jurisdiction in equity, in a case of complicated accounts, is based upon the inadequacy of the legal remedy. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

As to what constitutes complexity of accounts, such as to authorize a court of equity to assume jurisdiction, must be determined by the chancellor in each particular case. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

If accounts are complicated, that of itself constitutes sufficient ground for the assumption of jurisdiction by court of equity; as well as where the account is made up of items for and against each party, or the items are numerous and extended over a long period of time. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

Where there was an action on several notes and to have security sold and applied and where answers and cross bills raised issues of fraud, deceit, subrogation, usury, and damages from a previous injunction and from conversion of the security, the accounting was so complicated as to justify the trial court in denying trial by jury. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

9. —Ouster Proceedings.

Summary proceedings in ouster are not triable by jury as of right, where the legislative act stipulates that the proceeding in chancery should be summary. State ex rel. Timothy v. Howse, 134 Tenn. 67, 183 S.W. 510, 1915 Tenn. LEXIS 147, L.R.A. (n.s.) 1916D1090 (1916).

10. —Contempt.

Defendant was not entitled to trial by jury in contempt proceeding in circuit court for violating injunction against illegal sale of intoxicating liquor as the law provided that abatement of public nuisance should be conducted in accordance with procedure of court of chancery, and chancellor had authority to punish for contempt summarily. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

11. Jury Trial — Statutory Right.

Chancellor may not deprive litigant of right to have substantial disputes as to matters of fact passed on by jury. Arrants v. Sweetwater Bank & Trust Co., 55 Tenn. App. 631, 404 S.W.2d 253, 1965 Tenn. App. LEXIS 268 (Tenn. Ct. App. 1965).

The right of a party to trial by jury in chancery court is not unlimited and the chancellor may refuse to submit issues that are of a complicated nature, but such action is subject to review. Bauman v. Smith, 499 S.W.2d 935, 1972 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1972).

Prior to the 1976 enactment a party to a suit of an equitable nature in the chancery court could not demand a jury trial as a matter of right. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976).

12. —Disputed Issues.

In equity cases where there is a trial by jury it is the duty of the chancellor to see that none but proper and material issues are submitted to the jury, a material issue being one which is determinative of the whole case or a distinct branch of it. Third Nat'l Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915, 1943 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1943).

In equity cases where there is a trial by jury the jury does not try the whole case or render a general verdict for one party or the other, but tries only the disputed issues submitted to it in the form of questions, and answers them “Yes” or “No,” or states the amount or value when the question calls for that, then the chancellor, if he approves such answers decides the case on the answers of the jury, the undisputed facts and the applicable law. Third Nat'l Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915, 1943 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1943).

Where there is sufficient evidence, which if believed would entitle complainant to a decree it is error for the chancellor to withdraw the issues from the jury. Henry v. Southern Fire & Casualty Co., 46 Tenn. App. 335, 330 S.W.2d 18, 1958 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1958).

Jury findings supported by competent material evidence have same force and effect in chancery action as in jury trial at law. Davis v. Mason & Dixon Tank Lines, Inc., 539 S.W.2d 40, 1975 Tenn. App. LEXIS 185 (Tenn. Ct. App. 1975).

13. —Bill to Set Up Will.

It is error for the chancellor to refuse complainant's demand for jury trial of the issues of fact presented by his bill, and denied by the answer, alleging the making of a will by a testator when he was sane, and its destruction by him when insane, and seeking to set it up, and also alleging conveyance of the devised property by him while insane, and seeking to set it aside. Traughber v. Smelser, 108 Tenn. 347, 67 S.W. 475, 1901 Tenn. LEXIS 35 (1902).

14. —Abatement of Nuisance.

In a suit to abate a public nuisance under title 29, ch. 3, a party is entitled to a jury trial. State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352, 1916 Tenn. LEXIS 49 (1916).

15. Waiver.

The waiver of a jury demanded in the bill made by agreement at or before the first trial that the chancellor might try the case as a jury does not deprive the defendant of the right to demand a jury on a second or new trial, especially where it is not shown that there was any rule regulating the matter. Worthington v. Nashville, C. & S. L. R. Co., 114 Tenn. 177, 86 S.W. 307, 1904 Tenn. LEXIS 80 (1904).

16. Discretion of Court.

There is no absolute right to trial by jury in a suit for which the chancery court has inherent, equitable jurisdiction, but the submission of facts to a jury in such a case is a matter within the discretion of the chancellor. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

In a chancery suit for accounting, the question as to the right of a party to a jury trial is for the determination by the chancellor, from the pleadings, as to whether the case involves complicated accounting; and, if it does, the party has no absolute right to a trial by jury. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

In a suit on promissory notes, in which defendants filed a cross bill alleging that the notes in suit were procured by fraud, and that plaintiff had converted collateral security given by defendants to secure payment of the notes, which issues called for a complicated accounting, the chancellor properly refused to submit the issues to a jury. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

17. Application.

18. —Time for Demand.

Where a jury in chancery is not demanded in the pleadings, then a jury cannot be demanded by either party until the rights of the other party has been fully enjoyed as to the time for taking proof. Harris v. Bogle, 115 Tenn. 701, 92 S.W. 849, 1905 Tenn. LEXIS 99 (1906).

19. —Rule of Court.

A rule of court requiring the demand for a jury to be made at the next term after issue taken is reasonable and valid, as it does not limit or restrict the right given by statute. Hamilton v. Ritchie, 53 S.W. 198, 1899 Tenn. Ch. App. LEXIS 62 (1899).

Chancery court could not deprive a defendant who has demanded a jury trial in his answer of the right to such jury trial given him by statute, even though defendant had not complied with rule of court requiring defendant to demand a jury by motion in court after joinder of issue, as the statute is mandatory and the court rule was in conflict therewith. World Granite Co. v. Morris Bros., 142 Tenn. 665, 222 S.W. 527, 1919 Tenn. LEXIS 83 (1919).

20. Verdict of Jury.

In ejectment action seeking possession of land, compensatory and punitive damages and removal of cloud from title, verdict of jury as to compensatory damages was binding on chancellor rather than advisory only where jury was had on demand of complainant, amount of damages was in issue and record disclosed a substantial compliance with rules of court by complainant. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

Even though verdict of jury as to amount of compensatory damages was binding on chancellor in ejectment action, chancellor had authority to suggest remittitur as authorized by § 20-10-102. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

On appeal of cases of a nonequitable nature tried in a chancery court before a jury, the verdict of the jury has all the weight and effect of a verdict at law, and the appellate court may review only to ascertain the presence of material facts to support the verdict. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976).

21. —All Issues Decided.

The verdict of a jury in a chancery case where there are several issues should be upon all of the issues, and if they cannot agree upon all, the court should enter a mistrial and submit all the issues to another jury, as it is not proper to take as settled the issues found by a former jury and submit to the new jury the unsettled issues only. Buchanan v. Gower, 7 Tenn. Civ. App. (7 Higgins) 306 (1916).

22. Withdrawal of Issues.

23. —Discretion.

A directed verdict is unknown in chancery practice. Whether requested to do so or not, it is the duty of the chancellor to withdraw, or decline to submit to the jury an issue to support which there is no evidence. When he does direct a verdict, however, it has the effect of withdrawing the issue as without support in the undisputed and uncontroverted evidence adduced. Mutual Life Ins. Co. v. Burton, 167 Tenn. 606, 72 S.W.2d 778, 1934 Tenn. LEXIS 16 (1934); Standard Life Ins. Co. v. Strong, 19 Tenn. App. 404, 89 S.W.2d 367, 1935 Tenn. App. LEXIS 53 (Tenn. Ct. App. 1935).

Chancellor has a wide discretion in withdrawing issues from a jury, since litigants in chancery proceedings do not always have the right to trial by jury because of exceptions set forth in this section. Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666, 1934 Tenn. LEXIS 102 (1935).

24. —Creation of Parol Trust.

Chancellor is entitled to withdraw issues involved in parol trust case unless there is clear and convincing evidence in favor of trust. Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666, 1934 Tenn. LEXIS 102 (1935).

25. Appeal.

Action of chancellor in refusing to submit issues to jury is subject to review. Arrants v. Sweetwater Bank & Trust Co., 55 Tenn. App. 631, 404 S.W.2d 253, 1965 Tenn. App. LEXIS 268 (Tenn. Ct. App. 1965).

26. —Questions on Appeal.

In an appeal from a judgment entered on the verdict of a jury in a trial in equity the question on appeal is whether there is any material evidence to support the verdict. Davis v. Mitchell, 27 Tenn. App. 182, 178 S.W.2d 889, 1943 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1943).

27. —Evidence Weighed by Chancellor.

Upon a motion for a new trial, in equity cases where there is a trial by jury, challenging the sufficiency of the evidence to support the verdict, it is the duty of the trial judge to weigh the evidence and satisfy himself that it preponderates in favor of the verdict, or, if it does not, to grant a new trial; and if the record affirmatively shows he did not perform this duty the appellate court must reverse and remand for a new trial. Third Nat'l Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915, 1943 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1943).

28. —Evidence to Support Verdict.

On review of a chancery case wherein material facts were tried by a jury, the question in the court of appeals is the same as if the appeal had been from a judgment entered on the verdict of the jury in a trial at law, namely, whether there is any material evidence to support the verdict. Davis v. Mitchell, 27 Tenn. App. 182, 178 S.W.2d 889, 1943 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1943).

Collateral References. 27 Am. Jur. 2d Equity § 238; 47 Am. Jur. 2d Jury § 21.

30A C.J.S. Equity § 6.

Jury 13, 14.

21-1-104. Appointment of referees and commissioners.

The chancellors, in vacation as well as in term, have the power to appoint referees or commissioners to take accounts, where the clerk and master is interested or is unable to attend, or in other cases where it is deemed expedient.

Code 1858, § 4414 (deriv. Acts 1835-1836, ch. 4, § 12); Shan., § 6224; Code 1932, § 10493; T.C.A. (orig. ed.), § 21-1104.

Cross-References. Appointment of masters, Tenn. R. Civ. P. 53.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Attorney General Opinions. Service of process in delinquent tax actions, OAG 84-208 (6/27/84).

NOTES TO DECISIONS

1. Client of Solicitor Competent.

That the person named as special commissioner was a client of one of the solicitors whose fees were to be fixed does not constitute a legal bar to his appointment; it may have weight with the appointing chancellor. Rogers v. Rogers, 42 S.W. 70, 1896 Tenn. Ch. App. LEXIS 116 (1896).

Collateral References. 46 Am. Jur. 2d Judges §§ 29, 30; 66 Am. Jur. References § 19.

Power of successor or substituted master or referee to render decision or enter judgment on testimony heard by predecessor. 70 A.L.R.3d 1079.

Equity 393.

21-1-105. Appointments to serve process.

The chancellors may also, in like manner, appoint persons to serve original, mesne or final process, in particular cases, under special application.

Code 1858, § 4415 (deriv. Acts 1835-1836, ch. 4, § 12); Shan., § 6225; Code 1932, § 10494; modified; T.C.A. (orig. ed.), § 21-1105.

Cross-References. Process, by whom served, Tenn. R. Civ. P. 4.01.

Law Reviews.

Quiet Title Actions in Tennessee, 15 Mem. St. U.L. Rev. 263 (1985).

21-1-106. Regulation of master's proceedings.

The chancellor may also, in vacation as well as in term, but if in vacation, on reasonable notice to the opposite party, regulate and control all proceedings in the master's office, and, for good cause shown, may set aside, modify or alter any such proceedings, upon such terms as appear equitable.

Code 1858, § 4416 (deriv. Acts 1801, ch. 6, § 41); Shan., § 6226; Code 1932, § 10495; T.C.A. (orig. ed.), § 21-1106.

Cross-References. Masters, appointment and powers, Tenn. R. Civ. P. 53.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Chancellor's Power to Regulate Notice.

The chancellor, at chambers, may prescribe a notice shorter than that prescribed by statute. Markham v. Townsend, 2 Cooper's Tenn. Ch. 713 (1877).

Collateral References. 46 Am. Jur. 2d Judges §§ 29, 30.

21-1-107. Incompetency of chancellor on vacation matters.

In all cases in which the chancellor of the division in which any cause is pending is incompetent, the chancellor of any adjoining division has the same power, in vacation, to make all such orders and decrees, issue all such process, and dissolve, restore or modify injunctions, to appoint receivers, and do and perform any other duty that may be performed by the chancellor of the division, as provided by this part, but notice of the application shall be the same as to time and place as is prescribed for taking depositions. The party making the application shall state, by affidavit, that the chancellor is incompetent.

Acts 1870-1871, ch. 31, §§ 1, 2; Shan., §§ 6227, 6228; Code 1932, §§ 10496, 10497; modified; T.C.A. (orig. ed.), § 21-1107.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 625.

Collateral References.

Power of successor or substituted master or referee to render decision or enter judgment on testimony heard by predecessor. 70 A.L.R.3d 1079.

21-1-108. [Repealed.]

Compiler's Notes. Former § 21-1-108 (Acts 1929, ch. 97; C. Supp. 1950, § 10605.1; Acts 1972, ch. 565, § 1), concerning rules of practice of the chancery court, was repealed by Acts 2002, ch. 493, § 1, effective July 1, 2002.

Part 2
Process

21-1-201. Copy of bill on demand.

The clerk shall issue, upon demand, to any one of the defendants, the defendant's agent or attorney, to whom no copy of the bill appears by the sheriff's return to have been delivered, a certified copy of the bill, to be charged in the bill of costs.

Code 1858, § 4344 (deriv. Acts 1845-1846, ch. 122, § 1); Acts 1877, ch. 45, § 2; Shan., § 6154; Code 1932, § 10425; T.C.A. (orig. ed.), § 21-206.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 129.

Law Reviews.

An Exegesis of the Ejectment Statutes of Tennessee (R.D. Cox), 18 Mem. St. U.L. Rev. 581 (1988).

Collateral References. Equity 119-126.

21-1-202. Names included in process.

Attachments, injunctions and all other process issued to any one (1) county shall embrace the names of all the defendants required to be served with the process residing in that county.

Code 1858, § 4345 (deriv. Acts 1845-1846, ch. 122, § 3); Shan., § 6155; Code 1932, § 10426; T.C.A. (orig. ed.), § 21-207.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 47.

Law Reviews.

The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319.

Collateral References. Equity 119-126.

21-1-203. Personal service dispensed with.

  1. Personal service of process on the defendant in a court of chancery is dispensed with in the following cases:
    1. When the defendant is a nonresident of this state;
    2. When, upon inquiry at the defendant's usual place of abode, the defendant cannot be found so as to be served with process, and there is just ground to believe that the defendant is gone beyond the limits of the state;
    3. When the sheriff makes return upon any leading process that the defendant is not to be found;
    4. When the name of the defendant is unknown and cannot be ascertained upon diligent inquiry;
    5. When the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry;
    6. When judicial and other attachments will lie, under this code, against the property of the defendant; and
    7. When a domestic corporation has ceased to do business and has no known officers, directors, trustees or other legal representatives on whom personal service may be had.
  2. To dispense with process in any of the cases listed in subsection (a), the facts shall be stated under oath in the bill, or by separate affidavit, or appear by the return.

    Code, 1858, §§ 4352, 4353 (deriv. Acts 1787, ch. 22, § 1; 1801, ch. 6, § 14; 1833, ch. 15, § 1; 1833, ch. 47, § 3; 1835-1836, ch. 43, § 5; 1855-1856, ch. 164, § 2); Acts 1915, ch. 42; Shan., §§ 6162, 6163; Code 1932, §§ 10431, 10432; T.C.A. (orig. ed.), § 21-212; modified.

    Rule Reference. This section is referred to in Rule 10 of the Tennessee Rules of Juvenile Procedure.

    Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 52, 116, 136, 137, 443.

    Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-4-4 — 1-4-6.

    Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 80; 11 Tenn. Juris., Equity, § 47; 20 Tenn. Juris., Newspapers, § 3; 21 Tenn. Juris., Process, § 10.

    Law Reviews.

    Broadening The Bases of Individual In Personam Jurisdiction in Tennessee, 22 Tenn. L. Rev. 237.

    Cited: Finch v. Frymire, 36 S.W. 883, 1896 Tenn. Ch. App. LEXIS 13 (1896); Rast v. Terry, 532 S.W.2d 552, 1976 Tenn. LEXIS 607 (Tenn. 1976); Marlowe v. Kingdom Hall of Jehovah's Witnesses, 541 S.W.2d 121, 1976 Tenn. LEXIS 532 (Tenn. 1976); Dungan v. Dungan, 579 S.W.2d 183, 1979 Tenn. LEXIS 424 (Tenn. 1979); Hamm v. Hamm, 614 S.W.2d 366, 1980 Tenn. App. LEXIS 421 (Tenn. Ct. App. 1980); Watson v. Waters, 694 S.W.2d 524, 1984 Tenn. App. LEXIS 3192 (Tenn. Ct. App. 1984); Morrow v. Bobbitt, 943 S.W.2d 384, 1996 Tenn. App. LEXIS 489 (Tenn. Ct. App. 1996); Lipscomb v. Doe, 32 S.W.3d 840, 2000 Tenn. LEXIS 663 (Tenn. 2000); Perry v. Unknown Parties, — S.W.3d —, 2010 Tenn. App. LEXIS 797 (Tenn. Ct. App. Dec. 28, 2010).

    1. Constitutionality. 2. Purpose. 3. Strict Construction. 4. —Unknown Parties. 5. —Grounds for Publication. 6. Chancery Jurisdiction — Scope. 7. Judgment Against Nonresident. 8. —“Nonresident” Defined. 9. —Personal Judgment. 10. —Property Impounded. 11. —Attaching Interest of Nonresident Partner. 12. —Vendor's Lien — Enforcement Against Nonresident. 13. —Quieting Title Against Nonresident. 14. —Reformation of Deed. 15. —Tax Sale. 16. Inability to Find Defendant. 17. —Affidavit. 18. —Premature Return of Inability to Find. 19. Corporation. 20. —Having No Officers or Agents. 21. —Utility District. 22. Residence of Defendant Unknown. 23. Non Compos Mentis — Process Necessary. 24. Return to Rule Days — Application of Rule. 25. Questioning Validity of Notice. 26. Defense After Pro Confesso. 27. Persons Not in Being. 28. Diligent Inquiry. 29. Constructive Service Insufficient.

    It is within the powers of a state to provide by statute for bringing into its courts nonresidents having interests in real property situated within the state for the purpose of enforcing a lien, or clearing a title, or subjecting the property to the satisfaction of debts and that jurisdiction in such cases may be obtained by publication of notice to such nonresidents. Connor v. Tennessee C. R. Co., 109 F. 931, 1901 U.S. App. LEXIS 4260 (6th Cir. Tenn. 1901).

    Originally, courts of chancery acted only in personam. Instance after instance arose where it was seen to be necessary that in order to do complete justice this rule should be relaxed. As a result the legislature passed this section. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).

    Originally courts of chancery acted only in personam, and the rule is only changed by statute, which must be strictly construed. Grace v. Hunt, 3 Tenn. 341, 1 Cooke 341, 1813 Tenn. LEXIS 27 (1813); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).

    The right conferred by subdivision (a)(7) of this section being statutory, it must be strictly construed. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).

    Proceedings against unknown parties are invalid upon publication alone, which does not strictly comply with statutory requirements. Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).

    This section provides for two classes of cases without discriminating between them. The one class requires the fact on which the publication is grounded to appear on the face of the bill, or by affidavit attached; and in the other class, the fact upon which publication is grounded must appear by the officer's return. If the bill is false, the proceedings are fraudulent and void, and the complainant must suffer the consequences; but if the officer's return be false, the proceedings are not thereby invalidated, and the remedy of the defendant is against the officer alone, unless there be collusion between the officer and the complainant. Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).

    Chancery court properly set aside a default judgment and dismissed a petition filed by the former members of a dissolved church to sell the church's property because, inter alia, the service of process by publication on a descendant of the original property owners was insufficient and his conduct did not preclude him from setting aside the judgment as void where the former members knew his address and that he possibly had a claim to the property, the case did not fit within any of the specified circumstances in which constructive service was allowed, the descendant did not waive insufficient service of process, and his alleged delay did not preclude an attack on the void judgment. In re Beckwith Church of Christ, — S.W.3d —, 2016 Tenn. App. LEXIS 716 (Tenn. Ct. App. Sept. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 54 (Tenn. Jan. 19, 2017).

    Chancery is not confined in the exercise of its jurisdiction to decrees in personam. Robert v. Frogge, 149 Tenn. 181, 258 S.W. 782, 1923 Tenn. LEXIS 91 (1924).

    Personal service of process on a nonresident defendant is dispensed with by statute, in chancery cases. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).

    The court cannot acquire jurisdiction by constructive or substituted service of process to render personal judgment against a nonresident defendant who does not appear; the rule is otherwise with respect to resident defendants. Frolich & Barbour v. Hanson, 155 Tenn. 601, 296 S.W. 353, 1926 Tenn. LEXIS 85 (1927).

    The courts of this state have full authority to proceed against a nonresident upon seizure of his property within the state and publication, and such nonresident may be bound in such proceeding so far as his property in the state is concerned, but no further. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).

    A personal judgment may not be rendered against a nonresident defendant of whom jurisdiction is acquired only by publication notice. Lawson v. American Laundry Machinery Co., 165 Tenn. 180, 54 S.W.2d 712, 1932 Tenn. LEXIS 35 (1932).

    A personal judgment may not be rendered against a nonresident defendant against whom jurisdiction is acquired only by publication. Turnblazer v. Smith, 214 Tenn. 277, 379 S.W.2d 772, 1964 Tenn. LEXIS 475 (1964).

    By way of dicta it was said that the word “nonresident” may include domiciliaries sojourning or residing elsewhere. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).

    And, further if the statute should be so construed, the notice published pursuant to it would not be wanting in due process. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).

    No personal judgment can be rendered against a nonresident served with notice only by publication. Perry v. Young, 133 Tenn. 522, 182 S.W. 577, 1915 Tenn. LEXIS 116, L.R.A. (n.s.) 1917B385 (1916).

    Courts of law cannot entertain suit against a nonresident for a personal demand, upon publication alone, without attachment or other impoundment of property situated within the jurisdiction of the court; and want of jurisdiction over the nonresident is not, in such case, cured by the fact that a codefendant, jointly sued, but severally liable for the demand, was duly served with process. Farmers' & Traders' Bank of Allen County, 88 Tenn. 279, 12 S.W. 545, 1889 Tenn. LEXIS 48 (1889).

    In a suit in chancery by minority certificate holders in a resident incorporated fraternal beneficiary association against it and a nonresident similar association to declare illegal and ultra vires an attempted merger of the two associations, to restrain the disposition of the assets of the resident association under such void contract, and to require the return to the nonresident association of its assets illegally and wrongfully received by the resident association and its officers, jurisdiction of the nonresident association may be obtained by substituted process and constructive service by publication, where jurisdiction of the resident association has been obtained by personal service of process, appearance, and answer, and the jurisdiction of the subject matter, as the property of the corporations, has been obtained by impoundment by injunction, by which the court acquires jurisdiction to determine the entire controversy. Knapp v. Supreme Commandery, U. O. G. C. W., 121 Tenn. 212, 118 S.W. 390, 1908 Tenn. LEXIS 17 (1908).

    Where interest of a partner in assets of a nonresident partnership is attached, other partners may be brought in by publication in order to ascertain the rights of the partners. Gaines v. Fourth Nat'l Bank, 52 S.W. 467, 1898 Tenn. Ch. App. LEXIS 158 (1898).

    As attachment of land is not necessary to enforce a vendor's lien thereon, the court acquires jurisdiction by publication against a nonresident defendant, conforming to the requirements of this section, without complying with the requirements of § 29-6-145. Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873); Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 444, 67 S.W. 856, 1901 Tenn. LEXIS 46 (1902).

    In suit to quiet title and to have rights declared, subdivision (a)(1) applies. Ray v. Haag, 1 Tenn. Ch. App. 249 (1901).

    Where in a suit to reform a deed the court had jurisdiction of the subject matter and three of the defendants named in such suit resided in the county where the suit was brought and the other nonresident defendants were served by publication of the decree of the court allowing such reformation was immune from collateral attack. Globe & Republic Ins. Co. v. Shields, 170 Tenn. 485, 96 S.W.2d 947, 1936 Tenn. LEXIS 20 (1936).

    Publication of notice in city newspaper of proceeding by city to sell land of nonresident for nonpayment of city taxes was constructive notice and binding on nonresident, since nonresident was not entitled to actual notice of accrual of city taxes on property and of proceeding to sell property for unpaid taxes, even though property had formerly been outside of city limits and was later taken in by city on extension of city limits. Moore v. Memphis, 184 Tenn. 92, 195 S.W.2d 623, 1946 Tenn. LEXIS 264 (1946).

    Tax sale was void where jurisdiction over defendant was supposedly acquired by publication based on a not to be found return, but record showed that no return had in fact been made. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737, 1964 Tenn. LEXIS 429 (1964).

    The return of the sheriff “not to be found” is a legal prerequisite to a publication upon that ground and without such return any decree returned by the chancery court is void to such party. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737, 1964 Tenn. LEXIS 429 (1964).

    A “reasonableness” standard is codified in the requirement of diligent inquiry; taxing authorities are not required to undertake extraordinary efforts to discover the identity and whereabouts of an interested party. Freeman v. City of Kingsport, 926 S.W.2d 247, 1996 Tenn. App. LEXIS 24 (Tenn. Ct. App. 1996).

    Pursuant to T.C.A. § 36-1-117(m)(3) and T.C.A. § 21-1-203(a), there was no affidavit from the petitioners or their attorney detailing their efforts to locate the biological father, there was no order of the court making any findings about efforts to locate him, and there was no transcript or statement of the evidence as to any testimony in this regard; when constructive service had not been completed and petitioners' counsel learned of the defendant's address, there arose an obligation on the part of petitioners' counsel to attempt service by other, better means that were more likely to achieve actual service, and the fundamental fairness of a judicial proceeding required nothing less. In re M.D.W., — S.W.3d —, 2008 Tenn. App. LEXIS 185 (Tenn. Ct. App. Mar. 26, 2008).

    An order of pro confesso cannot be sustained where the order of publication was based upon an affidavit filed that the defendant was not to be found, because the statute requires that the order of publication should be based upon the officer's return. Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).

    The sheriff's return on the process of “not to be found in my county,” if premature, as where the process was not retained by the sheriff until the return day, would not authorize the publication. McGavock v. Young, 3 Cooper's Tenn. Ch. 529 (1877); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).

    Except to send a letter to encourage the property owner to receive process in person, the county did not attempt to give actual notice of the tax lien suit before it sold the land; notice did not comply with T.C.A. §§ 21-1-203 and 67-5-2415 as the county did not exercise due diligence before returning the summonses not found and it did not comply with due process. Wilson v. Blount County, 207 S.W.3d 741, 2006 Tenn. LEXIS 993 (Tenn. 2006).

    Subdivision (a)(7) of this section does not authorize service by publication upon a public corporation when the corporation has no officers or agents, and has never had any, and no one is named in the act creating the corporation upon whom service may be had. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).

    Attempted service on defendant utility district created by private act by means of service on secretary of state and by publication in a proceeding for a declaratory judgment that private act was unconstitutional was invalid where no commissioner or officer for utility district existed. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).

    In a divorce suit against defendant whose residence is unknown, a recital in the bill and in the decree that the defendant is a nonresident will not give the court jurisdiction of the defendant. In a suit against a defendant whose residence is unknown, the complainant must state on oath, either in his bill or in an affidavit, and must prove that the residence of the defendant is unknown and that it cannot be ascertained after proper and diligent inquiry. A divorce decree rendered without actual or constructive notice is void; and if constructive notice be relied on, the statutes providing for the same must be strictly observed. Gallagher v. Knoxville Iron Co., 5 Tenn. Civ. App. (5 Higgins) 718 (1914).

    Trial court did not obtain personal jurisdiction over the father through the attempted service by publication because the record contained no statement made under oath or by affidavit that service of process had been attempted on the father at his usual place of abode or last known residence and that delineated facts supporting the allegation that he was no longer in the State; therefore, any portion of the trial court's judgment related to child support was void ab initio. State ex rel. Catalano v. Woodcock, — S.W.3d —, 2016 Tenn. App. LEXIS 469 (Tenn. Ct. App. July 5, 2016).

    Service of process upon a non compos mentis defendant is not dispensed with by statute, and service is necessary to confer jurisdiction. Smith v. Smith, 159 Tenn. 36, 15 S.W.2d 747, 1928 Tenn. LEXIS 59 (1929).

    Where process was not served upon person later declared to be of unsound mind judgment was invalid regardless of appearance of guardian ad litem. In re McCartney, 31 Tenn. App. 171, 213 S.W.2d 25, 1948 Tenn. App. LEXIS 81 (Tenn. Ct. App. 1948).

    A rule of court, making “any process” other than final process returnable to rule days, includes not only the process provided for in this section, but all process except that which is final. Fellows v. Cook, 57 Tenn. 81, 1872 Tenn. LEXIS 401 (1872).

    Where a husband had actively aided wife in procuring a divorce in Tennessee from her former husband and had advised her not to correct an allegation in her complaint that her former husband probably claimed his legal residence in Massachusetts, the husband could not, in order to annul his own marriage, question the validity of the notice given to the former husband in the divorce proceeding on either the ground of fraud or lack of due process, particularly where the former husband had not questioned the notice or the divorce. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).

    In order to entitle the defendants to appear and defend after judgment pro confesso, they must all show merits, except in the cases of nonresidents and those whose residences are unknown. Owens v. Sims, 43 Tenn. 544, 1866 Tenn. LEXIS 85 (1866).

    Where complainant held life estate in real property with remainder to her unborn child or children in fee, valid service by publication could not be had on such unborn child or children under provisions of this section in action by life tenant against such unborn child or children for permission to sell property and invest proceeds or to mortgage property for improvements or to have title vested in life tenant in fee. Rodgers v. Unborn Child or Children of Rodgers, 204 Tenn. 96, 315 S.W.2d 521, 1958 Tenn. LEXIS 249 (1958).

    In the brothers' suit to void the tax sale regarding their previously jointly-owned inherited property, a directed verdict in favor of the new owners was proper as the process server used due diligence in attempting to serve the brothers with notice of the tax suit pursuant to T.C.A. § 21-1-203(a)(3), and there was no violation of the brothers'  due process rights, because of the deputy's actions or the constructive notice provided by the county after personal service on the brothers was unsuccessful. Smith v. Gregory, 253 S.W.3d 175, 2007 Tenn. App. LEXIS 676 (Tenn. Ct. App. Nov. 6, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 292 (Tenn. Apr. 14, 2008).

    In a termination of parental rights proceeding, given the absence of information regarding steps taken to identify the father, an adoption agency did not carry its burden of demonstrating the diligent inquiry required by T.C.A. § 21-1-203(a) in order to use service by publication, as simply asking the birth mother if she knew the name of the father and then giving up was not sufficient; the location of the party, the name of the host of the party, the names of attendees of the party, and the type of vehicle in which the child was conceived were all obvious areas of inquiry. Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 2007 Tenn. App. LEXIS 750 (Tenn. Ct. App. Dec. 5, 2007), appeal denied, The Adoption Place, Inc. v. Doe, — S.W.3d —, 2008 Tenn. LEXIS 90 (Tenn. Feb. 4, 2008).

    Order terminating a biological father's parental rights was vacated where petitioners did not conduct a diligent inquiry under T.C.A. § 21-1-203(a) to attempt to determine the biological father's residence; the record was devoid of any information regarding petitioners' efforts to locate the biological father beyond petitioners contacting the putative father registry. In re F.M.B.P.W., — S.W.3d —, 2008 Tenn. App. LEXIS 176 (Tenn. Ct. App. Mar. 26, 2008).

    Default judgment terminating a mother's parental rights was void because the father failed to make diligent efforts to locate the mother to accomplish personal service and failed to seek a court order allowing him to serve the mother by publication; the only efforts the father took to locate the mother were sending service of process to a home in which he knew the mother no longer resided and consulting with counsel. Turner v. Turner, — S.W.3d —, 2014 Tenn. App. LEXIS 398 (Tenn. Ct. App. July 7, 2014), aff'd in part, rev'd in part, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).

    Tennessee statutes authorize dispensing with personal service of process in a proceeding to terminate parental rights only if the defendant's residence is unknown and cannot be ascertained upon diligent inquiry, and the plaintiff has asked for an order authorizing constructive service by publication and has supported the request with an affidavit, and only when the residence of the defendant cannot be obtained through diligent inquiry may a party resort to constructive service by publication. Turner v. Turner, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).

    Record contained neither a motion from the father requesting an order authorizing constructive service by publication nor an affidavit describing the diligent inquiries that were made to locate the mother's whereabouts or her residence, and there was no order from the trial court authorizing constructive service by publication; the father's failure to comply with the statutory requirements necessary for resorting to constructive service by publication deprived the trial court of personal jurisdiction over the mother, and the judgment terminating the mother's parental rights was void. Turner v. Turner, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).

    Even if plaintiff were allowed to utilize the statutes in this breach of contract case, the constructive service by publication attempted by plaintiff was insufficient, given that defendant made his home outside the area of normal circulation of the paper plaintiff chose, and thus the publication was not reasonably calculated to give defendant notice of the suit. Ebulueme v. Onoh, — S.W.3d —, 2019 Tenn. App. LEXIS 260 (Tenn. Ct. App. May 24, 2019).

    Collateral References.

    Application of doctrine of idem sonans or the like to substituted or constructive service of process. 45 A.L.R.2d 1090.

    Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service. 46 A.L.R.2d 1364.

    Jurisdiction to render judgment for arrearage of alimony without personal service upon defendant of whom court had jurisdiction in the original divorce suit. 168 A.L.R. 232.

    Power to grant annulment of marriage against nonresident on constructive service. 43 A.L.R.2d 1086.

    Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication. 47 A.L.R.2d 423.

    Equity 322.

  3. The order for publication in lieu of personal service may be made at any time after the filing of the bill. The order of publication should contain the names of the parties, the style of the court in which the proceedings are had and the name of the place where the court is held, without any brief or abstract of facts, unless directed by the court.
  4. When the suit is against an unknown defendant, the order of publication should describe the unknown party, as near as may be, by the character in which the unknown party is sued, and by reference to the unknown party's title or interest in the subject matter of the litigation.
  5. Evidence of the publication in pursuance of the order may be by affidavit of the printer or actual production of the newspaper in court.

NOTES TO DECISIONS

1. Constitutionality.

2. Purpose.

3. Strict Construction.

4. —Unknown Parties.

5. —Grounds for Publication.

6. Chancery Jurisdiction — Scope.

7. Judgment Against Nonresident.

8. —“Nonresident” Defined.

9. —Personal Judgment.

10. —Property Impounded.

11. —Attaching Interest of Nonresident Partner.

12. —Vendor's Lien — Enforcement Against Nonresident.

13. —Quieting Title Against Nonresident.

14. —Reformation of Deed.

15. —Tax Sale.

16. Inability to Find Defendant.

17. —Affidavit.

18. —Premature Return of Inability to Find.

19. Corporation.

20. —Having No Officers or Agents.

21. —Utility District.

22. Residence of Defendant Unknown.

23. Non Compos Mentis — Process Necessary.

24. Return to Rule Days — Application of Rule.

25. Questioning Validity of Notice.

26. Defense After Pro Confesso.

27. Persons Not in Being.

28. Diligent Inquiry.

29. Constructive Service Insufficient.

21-1-204. Service by publication.

In case personal service is not used, if the defendant does not cause an appearance to be entered, the clerk, as soon as the necessary affidavit is made, shall enter upon the rule docket an order requiring the defendant to appear at a certain day named in the order, being a rule day, and defend, or otherwise the bill will be taken for confessed.

The clerk shall forthwith cause a copy of this order to be published for four (4) consecutive weeks in the newspaper mentioned in the order or designated by the general rules of the court.

Code 1858, §§ 4354-4359 (deriv. Acts 1801, ch. 6, § 4; 1833, ch. 15; 1845-1846, ch. 122, § 7; 1851-1852, ch. 365, § 3; 1853-1854, ch. 55, § 3; 1855-1856, ch. 164, § 2); Shan., §§ 6164-6169; Code 1932, §§ 10433-10438; T.C.A. (orig. ed.), §§ 21-213 — 21-217; modified.

Rule Reference. This section is referred to in Rule 10 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 116, 138, 139.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-4.

Tennessee Jurisprudence, 3 Tenn. Juris., Appearances, § 7; Tenn. Juris., Attachment and Garnishment, §§ 80, 83, 111; 21 Tenn. Juris., Process, §§ 10, 11.

Law Reviews.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273.

Federal and State Condemnation Proceedings — Procedure and Statutory Background (William E. Miller), 14 Vand. L. Rev. 1085.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

Cited: Rast v. Terry, 532 S.W.2d 552, 1976 Tenn. LEXIS 607 (Tenn. 1976); Dungan v. Dungan, 579 S.W.2d 183, 1979 Tenn. LEXIS 424 (Tenn. 1979); In re F.M.B.P.W., — S.W.3d —, 2008 Tenn. App. LEXIS 176 (Tenn. Ct. App. Mar. 26, 2008); Perry v. Unknown Parties, — S.W.3d —, 2010 Tenn. App. LEXIS 797 (Tenn. Ct. App. Dec. 28, 2010).

NOTES TO DECISIONS

1. Qualification of Clerk to Make Order.

The fact that the clerk and master, who is also receiver, is complainant, and makes the affidavit of nonresidence, does not disqualify him for making the order of publication. Akin v. Watson, 52 S.W. 905, 1899 Tenn. Ch. App. LEXIS 47 (1899).

2. Return of Notice.

Publication notice for nonresidents may be made returnable to a rule day like regular process. Fellows v. Cook, 57 Tenn. 81, 1872 Tenn. LEXIS 401 (1872).

3. Pro Confesso — Recitals as to Publication.

Though a judgment pro confesso does not show all the facts of publication, it will be sufficient evidence of publication if it recite that publication was made according to law. Savage v. Savage, 4 Tenn. App. 277, — S.W. —, 1927 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1927).

4. Grounds Stated Not Conclusive.

The grounds upon which the order was made need not be set out, and an entry which purports to state the grounds is not conclusive that upon that, and no other, the order was granted. Finch v. Frymire, 36 S.W. 883, 1896 Tenn. Ch. App. LEXIS 13 (1896).

5. —Presumptions.

In the absence of any affirmative showing that service by publication was insufficient, the presumption is that the court had jurisdiction of the person, and the decree is valid. Finch v. Frymire, 36 S.W. 883, 1896 Tenn. Ch. App. LEXIS 13 (1896).

6. Court Order Not Required.

A court order directing publication is not required. Rast v. Terry, 532 S.W.2d 552, 1976 Tenn. LEXIS 607 (Tenn. 1976).

7. Statements Required in Publication.

Publication for a nonresident, made in a proceeding to sell lands of delinquent taxpayers due to a city, is void where it fails to indicate in its caption or elsewhere that the city is the complainant by whom, or for whose benefit, the suit is prosecuted. Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Donaldson v. Nealis, 108 Tenn. 638, 69 S.W. 732, 1902 Tenn. LEXIS 9 (1902).

Trial court did not obtain personal jurisdiction over the father through the attempted service by publication because the record contained no statement made under oath or by affidavit that service of process had been attempted on the father at his usual place of abode or last known residence and that delineated facts supporting the allegation that he was no longer in the State; therefore, any portion of the trial court's judgment related to child support was void ab initio. State ex rel. Catalano v. Woodcock, — S.W.3d —, 2016 Tenn. App. LEXIS 469 (Tenn. Ct. App. July 5, 2016).

8. Strict Compliance with Statute Requisite.

Jurisdiction for decree against unknown parties, whether residents or nonresidents, not appearing in defense of suit, depends upon strict compliance with the statute as to publication for them. Ferriss v. Lewis, 2 Cooper's Tenn. Ch. 291 (1875); Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).

9. Basis for Publication — Sufficiency.

The publication must be based upon a sworn statement of the complainant, his agent or attorney, made in his bill or by separate affidavit, that the defendants' names are unknown and cannot be ascertained upon diligent inquiry. Ferriss v. Lewis, 2 Cooper's Tenn. Ch. 291 (1875); Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).

Publication for “unknown” defendants, based solely upon the averment supported by affidavit that they are nonresidents of the state, is unauthorized and void, and gives the court no jurisdiction of such parties. Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).

Defendants to a bill, who are not otherwise described therein than as “the heirs of L. Bleidorn,” must be proceeded against as “unknown” parties. They are not named in the bill. Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).

In a termination of parental rights proceeding, given the absence of information regarding steps taken to identify the father, an adoption agency did not carry its burden of demonstrating the diligent inquiry required by T.C.A. § 21-1-203(a) in order to use service by publication, as simply asking the birth mother if she knew the name of the father and then giving up was not sufficient; the location of the party, the name of the host of the party, the names of attendees of the party, and the type of vehicle in which the child was conceived were all obvious areas of inquiry. Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 2007 Tenn. App. LEXIS 750 (Tenn. Ct. App. Dec. 5, 2007), appeal denied, The Adoption Place, Inc. v. Doe, — S.W.3d —, 2008 Tenn. LEXIS 90 (Tenn. Feb. 4, 2008).

10. Proof of Publication.

Where a nonresident defendant is made a party to a bill by publication of an order requiring him to appear, the fact of publication may be proved to the court by the production of the newspaper or by affidavit of the printer, publisher, or foreman. It is sufficient for the record to state that it appeared to the satisfaction of the court that publication has been made. The court is not bound to show the proofs, because, being a superior court, its proceedings are presumed to be correct. Kilcrease's Heirs v. Blythe, 25 Tenn. 378, 1845 Tenn. LEXIS 108 (1845); Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Martin v. Porter, 51 Tenn. 407, 1871 Tenn. LEXIS 182 (1871); Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Netherland v. Johnson, 73 Tenn. 340, 1880 Tenn. LEXIS 134 (1880); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Harris v. McClanahan, 79 Tenn. 181, 1883 Tenn. LEXIS 37 (1883); Byram v. McDowell, 83 Tenn. 581, 1885 Tenn. LEXIS 83 (1885); Pope v. Harrison, 84 Tenn. 82, 1885 Tenn. LEXIS 118 (1885); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886).

11. Service Insufficient.

Even if plaintiff were allowed to utilize the statutes in this breach of contract case, the constructive service by publication attempted by plaintiff was insufficient, given that defendant made his home outside the area of normal circulation of the paper plaintiff chose, and thus the publication was not reasonably calculated to give defendant notice of the suit. Ebulueme v. Onoh, — S.W.3d —, 2019 Tenn. App. LEXIS 260 (Tenn. Ct. App. May 24, 2019).

Collateral References. 27 Am. Jur. 2d Equity § 221.

72 C.J.S. Process §§ 65, 66, 69, 70, 104.

Equity 127, 322.

21-1-205. Actual notice to nonresidents.

  1. Where publication is made for a nonresident defendant, the clerk of the court in which the suit is filed shall mail a copy of the complaint or, after the first publication, mail a copy of the newspaper clipping containing the publication to the nonresident defendant, directed to the nonresident defendant's last known address; and the clerk shall make an entry upon the clerk's docket so showing. The clerk shall mail the copy of the complaint or published notice by return receipt certified or registered mail. The return of the receipt signed by the defendant or the defendant's duly authorized agent, or its return marked refused, evidenced by appropriate notation of that fact by the postal authorities, and filed as a part of the record by the clerk, with notation on the docket of the true facts, shall be evidence of personal notice. In the event the return receipt does not establish that it was signed by the defendant or the defendant's authorized agent or that the notice was refused, then the court may find through independent proof that the defendant had actual notice in compliance with notice requirements. If the court does not find that the defendant had actual notice, it may order new publication on applicable grounds, or order such other and further action to be taken to give the defendant notice.
  2. In those counties where the divorce referee mails notice of the filing of the divorce and a copy of the complaint to a nonresident defendant by certified or registered mail return receipt requested, it shall not be necessary for the clerk of the court to also mail notice. Notice to the nonresident defendant from the divorce referee shall be sufficient, subject to the requirements of evidence of notice as set forth in subsection (a); provided, that the return receipt is filed as part of the record, with notation on the docket of the true facts. Nothing in this section shall be deemed to have changed or amended requirements of the law as to venue or jurisdiction.

Acts 1923, ch. 13, § 1; Shan. Supp., § 5284a1; mod. Code 1932, §§ 10439, 10440; Acts 1977, ch. 74, § 1; T.C.A. (orig. ed.), § 21-218.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 138, 147, 515.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-4-4.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 27.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, IV. Divorce (Neil P. Cohen), 45 Tenn. L. Rev. 433.

A Survey of Civil Procedure in Tennessee — 1977, II. Selecting a Proper Forum (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 273.

Recent Developments — Domestic Relations — Divorce — Due Process for Indigent Plaintiffs, 47 Tenn. L. Rev. 845.

Cited: Baggett v. Baggett, 541 S.W.2d 407, 1976 Tenn. LEXIS 548 (Tenn. 1976); Hamm v. Hamm, 614 S.W.2d 366, 1980 Tenn. App. LEXIS 421 (Tenn. Ct. App. 1980).

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

To the extent that this section may be considered to relieve the court of the obligation to give notice by mail to a nonresident defendant whose last known place of residence is known or can be ascertained upon inquiry, the statute is in violation of the due process clause of the fourteenth amendment to the constitution of the United States and void. Baggett v. Baggett, 541 S.W.2d 407, 1976 Tenn. LEXIS 548 (Tenn. 1976). (Decision prior to 1977 amendment.)

2. Notice by Publication Insufficient.

Notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. Baggett v. Baggett, 541 S.W.2d 407, 1976 Tenn. LEXIS 548 (Tenn. 1976).

Collateral References. Equity 374.

21-1-206. Memorandum book for process.

The clerk shall keep a memorandum book in which shall be noted the issuance of every subpoena for witnesses, commissions, with the day of issuance, and any other proceedings of the clerk if not entered on the clerk's records, rule docket, or minutes; and the book shall be open for parties or their attorneys to make such memorandums for the direction of the clerk as may be necessary.

Code 1858, § 4433 (deriv. Acts 1801, ch. 6, § 46); Shan., § 6245; Code 1932, § 10530; T.C.A. (orig. ed.), § 21-219.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 642.

Part 3
Contempt on Failure to Appear

21-1-301. Procedure on defendant's failure to appear.

If the defendant upon whom process has been served fails to appear and defend in the time required by law, the bill may be taken for confessed; or the complainant may proceed by process of contempt to compel an answer.

Code 1858, § 4360 (deriv. Acts 1801, ch. 6, § 15); Shan., § 6170; Code 1932, § 10441; T.C.A. (orig. ed.), § 21-301.

Cross-References. Contempt of court, §§ 29-9-10129-9-106.

Decrees pro confesso, title 21, ch. 1, part 4.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 140, 178.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538.

21-1-302. Attachments.

  1. The only process of contempt is an attachment, which is issued upon order of the chancellor at the instance of the complainant, upon the return of the subpoena duly served by the proper officer, or affidavit by the officer of such service.
  2. The attachment may be made returnable to any rule day in term or vacation, and upon its service, bail may be taken for the appearance of the defendant at the time fixed in the attachment.
  3. If the defendant fails to appear in compliance with the terms of the defendant's bail, a second attachment issues, upon which no bail can be taken, and the penalty of the bail bond may be decreed forfeited and collected by execution.
  4. After an attachment for contempt, no plea or demurrer shall be received, unless by order of the court upon motion.

Code 1858, §§ 4361-4363, 4365 (deriv. Acts 1801, ch. 6, §§ 9, 10, 19, 21); Shan., §§ 6171-6173, 6175; Code 1932, §§ 10442-10444, 10446; T.C.A. (orig. ed.), §§ 21-302 — 21-305.

Cross-References. Rule days, § 21-1-705.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 155, 157.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 27.

Collateral References. 17 C.J.S. Contempt § 78.

Contempt 55, 56.

21-1-303. Refusal to answer fully.

A defendant who appears and refuses to answer fully shall be committed to jail, there to remain until the defendant is purged of the contempt and complies with the requirements of the law by filing a full and complete answer.

Code 1858, § 4364 (deriv. Acts 1801, ch. 6, § 15); Shan., § 6174; Code 1932, § 10445; T.C.A. (orig. ed.), § 21-306.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 155, 157, 158.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538.

Collateral References. Contempt 58, 64.

21-1-304. Procedure after commitment.

If the defendant is committed for contempt, the complainant may proceed with the action as if the bill had been taken for confessed, the allegations being taken as in all respects true. But, in that case, all further proceedings for the contempt shall cease, and the court, or the judge of the court, may discharge the defendant from custody.

Code 1858, §§ 4366, 4367 (deriv. Acts 1801, ch. 6, §§ 15, 20); Shan., §§ 6176, 6177; Code 1932, §§ 10447, 10448; T.C.A. (orig. ed.), § 21-307.

Cross-References. Decrees pro confesso, title 21, ch. 1, part 4.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 157.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538.

21-1-305. Extension of time to answer.

Nothing in this part shall deprive the clerk and master, or the court, of the power of granting to the defendant, upon good cause shown, further time within which to file answer.

Code 1858, § 4368 (deriv. Acts 1801, ch. 6, § 15); Shan., § 6178; Code 1932, § 10449; T.C.A. (orig. ed.), § 21-308.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 157, 634.

Part 4
Decrees Pro Confesso

21-1-401. Original attachment — Effect of decree.

Cases in chancery brought by attachment of property under title 29, chapters 6 and 7 are governed, in respect to the effect of the decree pro confesso, by §§ 29-6-16129-6-165.

Code 1858, § 4378; Shan., § 6188; Code 1932, § 10459; T.C.A. (orig. ed.), § 21-510.

Cross-References. Defendant's failure to appear; bill may be treated as confessed or defendant held in contempt, § 21-1-301.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 27; 16 Tenn. Juris., Judgments and Decrees, § 84.

Collateral References. Equity 417-420.

21-1-402. Time decree becomes absolute without attachment.

In all other cases, a decree against a defendant without personal service of process who does not appear to defend is not absolute for three (3) years from the decree, unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fails to come forward and make defense within six (6) months after service.

Code 1858, § 4379 (deriv. Acts 1787, ch. 22, § 1); Shan., § 6189; Code 1932, § 10460; T.C.A. (orig. ed.), § 21-511.

Cross-References. Defendant failure to appear, contempt, §§ 21-1-30121-1-305.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Military, § 10; 25 Tenn. Juris., Wills, § 158.

Cited: Slawson v. Denton, 48 S.W. 350, 1898 Tenn. Ch. App. LEXIS 88 (1898).

NOTES TO DECISIONS

1. Purpose and Policy.

This statute is a salutary provision protecting the absent defendant, and enabling the complainant to make his rights absolute within a limited period. Scovel v. Absten, 1 Cooper's Tenn. Ch. 73 (1872); Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875).

2. Service.

3. —Place.

The service of the copy of the decree may be made wherever the defendant can be found; and, it seems, may be made in another state. Scovel v. Absten, 1 Cooper's Tenn. Ch. 73 (1872); Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875).

4. —Mode and Proof.

Service of copy of decree need not be an official service; it may be proved by any competent testimony. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

5. —Service on One of Several Defendants.

A defendant served, though joined by others who were not, is not entitled to the privileges conceded to the latter by this section and §§ 21-1-403, 21-1-404. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

6. Examples.

7. —Divorce Decrees.

A decree for a divorce cannot be opened under the broad provisions of this section, giving nonresident defendants time after service of copy of decree to defend against it. Wills v. Wills, 104 Tenn. 382, 58 S.W. 301, 1900 Tenn. LEXIS 5 (1900), overruled, Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968), overruled on other grounds, Moore v. Moore, 222 Tenn. 1, 431 S.W.2d 754, 1968 Tenn. LEXIS 405 (1968).

Chancery court had jurisdiction on service of process by publication to set aside divorce decree obtained in law court by fraud where husband brought the marriage status into Tennessee and thereafter remained beyond its jurisdiction, and husband could not thereafter reopen the final decree of the chancery court upon special appearance questioning jurisdiction. Martin v. Martin, 200 Tenn. 196, 292 S.W.2d 9, 1956 Tenn. LEXIS 395 (1956).

8. —Construction of Will.

This section and §§ 21-1-403 and 21-1-404 apply to a case for the construction of a will. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

9. —Partition Proceedings.

Chancellor erred in dismissing petition of nonresident defendant attacking final decrees entered in partition suit where petition was filed within three years from dates of decrees on the ground that it had no jurisdiction as plaintiff in original partition proceeding was a nonresident, since holding of chancellor amounted to granting immunity to nonresident plaintiff not allowed resident plaintiffs. Mitchell v. Richardson, 187 Tenn. 189, 213 S.W.2d 111, 1948 Tenn. LEXIS 424 (1948).

Collateral References. Equity 422.

21-1-403. Death of defendant after decree.

The death of the defendant proceeded against without personal service, whether the death occurs before or after the filing of the bill, does not render the proceedings void, but the defendant's heirs or representatives, as the case may be, have the right, within three (3) years from the rendition of the final decree, to make themselves parties by petition, verified by affidavit, showing merits and contest the complainant's bill.

Code 1858, § 4380 (deriv. Acts 1787, ch. 22, § 1); Shan., § 6190; Code 1932, § 10461; T.C.A. (orig. ed.), § 21-512.

Cross-References. Substitution of parties, Tenn. R. Civ. P. 25.

NOTES TO DECISIONS

1. Sale Under Decree Without Revivor Against Heirs.

Where a bill was filed in the chancery court to collect taxes, and the person against whom the bill was filed and decree was sought died before the decree for sale was pronounced, and there was no revivor against the heirs, the sale thereunder was not void. Dunham v. Harvey, 111 Tenn. 620, 69 S.W. 772, 1902 Tenn. LEXIS 24 (1902).

21-1-404. Time defense allowed.

The original defendant, or the defendant's heir, representative or assignee claiming under the defendant by virtue of any act done before the commencement of the suit, may, within six (6) months after service of a copy of the decree, or within three (3) years after the decree, be admitted to answer the bill, upon petition showing merits, and giving security for the payment of costs, and witnesses on both sides may be examined, and such other proceedings may be had on the suit as if the cause were then newly begun.

Code 1858, § 4381 (deriv. Acts 1787, ch. 22, § 1); Shan., § 6191; Code 1932, § 10462; T.C.A. (orig. ed.), § 21-513.

Cross-References. Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 158.

NOTES TO DECISIONS

1. Petition.

2. —Sufficiency.

A motion to dismiss the petition is the proper practice to test its sufficiency; and in deciding this motion the court will look alone to the petition in connection with the record. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

The petition for leave to defend after final decree must disclose “merits”; and this may be done either by assignment of errors of law or fact upon the original record, or by averment of additional facts aliunde. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

3. —Answer to Petition Not Permissible.

No defense to the petition, by answer, is allowed, and the petition must stand or fall by the facts in itself and the record. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

4. —Answer Accompanying Petition Unnecessary.

As the petition is merely for leave to answer, it need not be accompanied by the answer. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

5. Filing Petition.

6. —Place for Filing.

The proceeding for a hearing must be by petition in the same court in which the decree was rendered. Anderson v. Bank of Tennessee, 37 Tenn. 661, 1858 Tenn. LEXIS 91 (1858).

After final decree in the supreme court, application for leave to answer and make defense shall be made in the chancery court. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

7. —Notice of Filing.

Reasonable notice of the filing of a petition should be given to the opposite party before it is acted on by the court, but regular process need not issue. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

8. —Time of Filing.

The petitioner's application to be allowed to make defense is not defeated by the service of copy of the decree upon him for more than six months previous to filing his petition, as provided in § 21-1-402, unless such fact appears in the petition or record. If such copy has been served more than six months, advantage of the same may be had by a supplemental bill in the original cause. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

Where application is made to the chancery court for leave to answer and defend after final decree in the supreme court, the three years within which the application is required to be made by this section runs from the date of the decree in the supreme court. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

9. Nonresidence.

10. —Defense After Final Decree.

Where a nonresident defendant is permitted to make defense after final decree, he must do so by an answer making an issue, and not by a demurrer to the bill. Ledgerwood v. Miller, 2 Shan. 66 (1876); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

11. —Nonresident Complainant.

Chancellor erred in dismissing petition of nonresident defendant attacking final decrees entered in partition suit where petition was filed within three years from dates of decrees on the ground that it had no jurisdiction as plaintiff in original partition proceeding was a nonresident, since holding of chancellor amounted to granting immunity to nonresident plaintiff not allowed resident plaintiffs. Mitchell v. Richardson, 187 Tenn. 189, 213 S.W.2d 111, 1948 Tenn. LEXIS 424 (1948).

12. Military Service Relief.

Nonresident defendant who was in the service at the time decree was entered in partition proceedings and at the time a decree was entered allowing attorney's lien against portion of land set off to nonresident and who filed a petition having merit within 90 days after his release from service in which he sought permission to file an answer in partition proceeding was not required to file cost bond required by this section until granted permission by chancellor to file answer, as his rights under federal law would otherwise be violated, since his military service prejudiced him in defense of his rights. Mitchell v. Richardson, 187 Tenn. 189, 213 S.W.2d 111, 1948 Tenn. LEXIS 424 (1948).

Collateral References. Equity 419, 430.

21-1-405. Security from complainant on decree.

It is no objection to the execution of a decree rendered against a defendant that it was founded on a bill taken for confessed, without personal service; but the court may require the complainant to give sufficient security, in such sum as the court deems proper, to abide by and perform such order touching the restitution of property, or repayment of money, as the court may and should make, upon the defendant subsequently setting aside the decree, and successfully resisting the complainant's suit.

Code 1858, § 4382 (deriv. Acts 1787, ch. 22, § 1; 1801, ch. 6, § 53); Shan., § 6192; mod. Code 1932, § 10463; T.C.A. (orig. ed.), § 21-514.

NOTES TO DECISIONS

1. In General.

Before the execution of the decree, the court may require the complainant to give security to abide by and perform such order touching the restitution of the property, or repayment of the money, as the court may make. Scovel v. Absten, 1 Cooper's Tenn. Ch. 73 (1872).

2. Requirement of Security to be Encouraged.

This admirable provision of the Code deserves to be borne in mind, and properly enforced by the courts; and security should be required in all cases falling within the law, before permitting a complainant to execute his decree, unless he makes it absolute. Scovel v. Absten, 1 Cooper's Tenn. Ch. 73 (1872); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).

3. “May” Defined.

The word “may” in this section means “ought to”; and the court ought to require of complainant sufficient security as contemplated by the statute. Sexton v. Alberti, 78 Tenn. 452, 1882 Tenn. LEXIS 204 (1882).

21-1-406. Effect of execution before setting aside.

The decree, if executed before it is set aside under any of the provisions of §§ 21-1-40121-1-405, shall be a protection to all persons acting upon its validity, and confer a good title to all property sold under it.

Code 1858, § 4383 (deriv. Acts 1787, ch. 22, § 1); Shan., § 6193; Code 1932, § 10464; T.C.A. (orig. ed.), § 21-515.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judicial Sales, § 40.

Law Reviews.

Divorce Decree Taken on Pro Confesso — When It May Be Set Aside for Fraud, 19 Tenn. L. Rev. 843.

Cited: Richardson v. Mitchell, 34 Tenn. App. 318, 237 S.W.2d 577, 1950 Tenn. App. LEXIS 151 (Tenn. Ct. App. 1950).

NOTES TO DECISIONS

1. In General.

If the decree be executed before it is set aside, it will be a protection to all persons acting upon its validity, and will confer a good title to all property sold under it. Dunham v. Harvey, 111 Tenn. 620, 69 S.W. 772, 1902 Tenn. LEXIS 24 (1902).

2. Complainant Purchasing.

Where the complainant is the purchaser, he cannot retain the title thus obtained. This section is intended to apply only where a stranger to the proceeding is a purchaser. Sexton v. Alberti, 78 Tenn. 452, 1882 Tenn. LEXIS 204 (1882); Blanz v. Bain, 95 Tenn. 87, 31 S.W. 159, 1895 Tenn. LEXIS 66 (1895).

Collateral References. 27 Am. Jur. 2d Equity § 224.

Part 5
Transfer of Cases

21-1-501. Incompetency of judge.

In all cases in equity, if the judge is a party, is directly interested in the suit, is connected by blood or affinity within the prohibited degrees with any person so interested or is incompetent as having been of counsel, the venue may be changed to the nearest chancery court, as the case may be, not liable to the like exception, as of course, at the instance of either party, without costs, unless the term at which the application is made, being a trial term, the cause shall be heard and disposed of by a judge not liable to the like exception, sitting specially or by interchange.

Code 1858, § 2842; Shan., § 4556; mod. Code 1932, § 8689; T.C.A. (orig. ed.), § 21-401.

Cross-References. Interchange of judges, § 17-2-202.

Transfer to another county by consent, § 16-11-201.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Venue, § 6.

Collateral References. 46 Am. Jur. 2d Judges §§ 52-82; 77 Am. Jur. 2d Venue § 61.

48 C.J.S. Judges § 73.

Disqualification of original trial judge to sit on retrial after reversal or mistrial. 60 A.L.R.3d 176.

Dissolution of marriage as affecting disqualifying relationship by affinity in case of judge. 117 A.L.R. 800.

Modification of decree of divorce, statute providing for change of judge on ground of bias or prejudice as applicable to proceedings for. 143 A.L.R. 411.

Relationship of judge to one who is party in an official or representative capacity as disqualification. 10 A.L.R.2d 1307.

Venue 2.

21-1-502. Suits related to actions in other courts.

The chancery court in which any suit or proceeding is brought in which the complainant seeks relief predicated upon, closely related to or growing out of matters or things theretofore adjudicated by final judgment or decree of the circuit or any other court, whether or not the circuit or other court retained jurisdiction of the cause for the purpose of enforcing or modifying the final judgment or decree, in the sound discretion of the judge or chancellor of the chancery court, either sua sponte, or upon motion of any defendant, may transfer the suit or proceeding to the court in which such matters or things were theretofore finally adjudicated; provided, that the circuit or other court shall have jurisdiction of the suit or proceeding concurrent with the chancery court; and provided further, that it shall be made to appear to the chancery court that the transfer of the suit or proceeding to the circuit or other court will not cause unnecessary hardship or inconvenience to the parties to the suit or proceeding, their counsel or witnesses, or unreasonable delay in the final hearing or disposition of the suit or proceeding.

Acts 1953, ch. 155, § 1 (Williams, § 10604.1); T.C.A. (orig. ed.), § 21-402.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, §§ 28, 29, 31.

Collateral References. 27 Am. Jur. 2d Equity § 177.

Part 6
Answers

21-1-601. Oath to answer.

When an answer is required to be sworn to, the oath may be administered as in case of the bill of complainant. The power of the court or clerk and master to appoint a special commissioner to administer the oath, either in this or any other state, is not affected by this section.

Code 1858, §§ 4398, 4399 (deriv. Acts 1801, ch. 6, § 11); Shan., §§ 6208, 6209; mod. Code 1932, §§ 10478, 10479; T.C.A. (orig. ed.), § 21-614.

Cross-References. Oath to bill, § 21-1-102.

Signing of pleadings, Tenn. R. Civ. P. 11.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 77.

NOTES TO DECISIONS

1. Verification Before Foreign Justice.

An exception before the master to an answer, because sworn to before a justice of the peace of another state, without the certificate of the clerk of his court, as to his official capacity, required by this section, should be sustained. Bradley v. Dibbrell, 50 Tenn. 522, 1871 Tenn. LEXIS 108 (1871).

Collateral References. 27 Am. Jur. 2d Equity § 199.

21-1-602. Evidential value of answer in discovery and where oath not waived.

A sworn answer in chancery, when required by a bill of discovery or when the oath to the answer is not waived, shall have no more weight or effect in evidence than the deposition of the defendant filing the answer.

Acts 1957, ch. 153, § 1; T.C.A., § 21-628.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 50.

Part 7
Rules and Orders of Clerk and Master

21-1-701. Powers of clerk and master.

The clerk and master may, at the clerk and master's office:

  1. Receive and enter on the rules the suggestion and proof of a party's death, and order and issue the necessary process to revive;
  2. Make orders for publication against defendants in cases in which publication is allowed in lieu of personal service;
  3. Take bills for confessed, and set aside the orders pro confesso, upon good cause shown and the filing of a sufficient answer;
  4. Appoint guardians ad litem for infants, upon its being made to appear, by affidavit, that they have no general guardian;
  5. Make orders for the taking of depositions, where those orders are necessary; and
  6. Open causes for proof, on good cause shown, after they have been set for hearing, in the same way the chancellor might do.

Code 1858, § 4420 (deriv. Acts 1787, ch. 22, § 1; 1845-1846, ch. 122, §§ 7-9); Shan., § 6232; mod. Code 1932, § 10515; T.C.A. (orig. ed.), § 21-901.

Cross-References. Clerks and masters, Tenn. R. Civ. P. 53.05.

Clerk's fees, § 8-21-401.

Depositions, Tenn. R. Civ. P. 26, 27.

Order of publication in lieu of personal service, §§ 21-1-204, 21-1-205.

Regulation of proceedings by chancellor, § 21-1-106.

Rule to appear and defend, § 21-1-204.

Substitution of parties, Tenn. R. Civ. P. 25.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 63, 148, 631, 634.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 58; 18 Tenn. Juris., Minors, § 17.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. Applicability.

Former T.C.A. § 67-5-2706 did not expressly state that a clerk and master is empowered or directed to make a deed to a person who had exercised that individual's statutory right to redeem property; moreover, T.C.A. §§ 18-1-105, 18-5-102, 18-5-103, and 21-1-701 did not provide that such a clerk was authorized to make a deed to one who had properly exercised his or her right of redemption, and therefore a writ of mandamus was properly denied in a case where a clerk and master refused to issue a fee simple deed to a redeemer in a tax sale since there was no mandate to do so, the action was taken on behalf of all of a decedent's heirs as tenants in common, and to do so would have conflicted with a trial court's order. Jones v. Anderson, 250 S.W.3d 894, 2007 Tenn. App. LEXIS 608 (Tenn. Ct. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 123 (Tenn. Feb. 25, 2008).

2. Appointment of Guardian Ad Litem.

The appointment of a guardian ad litem by the court is valid, though made without affidavit of the minority of the defendants. Martin v. Porter, 51 Tenn. 407, 1871 Tenn. LEXIS 182 (1871).

It is not proper that the solicitor of the adverse party should be the solicitor and guardian ad litem of the minor defendants to a cause. Morgan v. McSpadlen, 2 Shan. 86 (1876).

In the appointment of a guardian ad litem, it is the duty of the court to select one learned in law, capable of investigating and protecting the interest of his ward. Morgan v. McSpadlen, 2 Shan. 86 (1876).

3. Affidavit to Set Aside Pro Confesso.

The master is not authorized to set aside an order taking a bill for confessed, except upon an affidavit showing good cause why an answer was not sooner filed, and the tender of a sufficient answer; and the affidavit must be made by the party himself, unless the facts relied on are peculiarly within the knowledge of the person tendering the affidavit; and a pro confesso against several defendants cannot ordinarily be set aside as to all of them upon an answer sworn to by only one of them. Cook v. Dews, 2 Cooper's Tenn. Ch. 496 (1875).

Where a pro confesso is set aside by the clerk and master every prerequisite of the statute must be shown to exist as the clerk and master is a mere ministerial officer and cannot act except under the conditions prescribed by the statute but the action of the chancellor in setting aside a pro confesso in a judicial action is exercised in his sound discretion and cannot be disturbed except for abuse of that discretion. Bailey v. Schubert, 203 Tenn. 660, 315 S.W.2d 249, 1958 Tenn. LEXIS 232 (1958).

Collateral References. 27 Am. Jur. 2d Equity § 230.

Equity 395.

21-1-702. Entry of proceedings by clerk and master.

Rules, notices, orders and other proceedings in a cause, made with or by the clerk and master, shall be entered by the clerk and master in a well-bound book, to be kept for that purpose, each entry to be made in order and with the correct dates attached.

Code 1858, § 4417 (deriv. Acts 1801, ch. 6, § 12); Shan., § 6229; Code 1932, § 10512; T.C.A. (orig. ed.), § 21-902.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 642.

21-1-703. Time of proceedings.

The rules, notices and proceedings described in § 21-7-702 shall be made at the rule days, unless otherwise authorized by this code.

Code 1858, § 4418; Shan., § 6230; Code 1932, § 10513; T.C.A. (orig. ed.), § 21-903.

Cross-References. Rule days, § 21-1-705.

Cited: Bailey v. Schubert, 203 Tenn. 660, 315 S.W.2d 249, 1958 Tenn. LEXIS 232 (1958).

21-1-704. Insertion in rule docket.

All rules or orders taken at any one (1) court shall be inserted in the rule docket by the first rule day that is more than twenty (20) days after the term.

Code 1858, § 4419 (deriv. Acts 1801, ch. 6, § 12); Shan., § 6231; Code 1932, § 10514; T.C.A. (orig. ed.), § 21-904.

21-1-705. Rule days.

Each day of a regular, special or adjourned term of the court of chancery, and also the first and third Mondays of every month in vacation, is a rule day.

Code 1858, § 4421 (deriv. Acts 1851-1852, ch. 365, § 2); Shan., § 6233; Acts 1921, ch. 163, § 1; Code 1932, § 10516; T.C.A. (orig. ed.), § 21-905.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judgments and Decrees, § 87.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Cited: Harris v. Bogle, 115 Tenn. 701, 92 S.W. 849, 1905 Tenn. LEXIS 99 (1906); Bailey v. Schubert, 203 Tenn. 660, 315 S.W.2d 249, 1958 Tenn. LEXIS 232 (1958).

NOTES TO DECISIONS

1. Return Day Certain — Three Days for Answer.

Process returnable to a rule day certain cannot be taken for confessed against the defendant the succeeding day, and it is error to enter a final decree on that day. Defendant has three days from return day to answer. Huffstedler v. Swan, 154 Tenn. 451, 289 S.W. 522, 1926 Tenn. LEXIS 142 (1926).

Collateral References. 21 C.J.S. Courts § 490.

21-1-706. Notice of proceedings by clerk.

The clerk and master shall give to the opposite party, or the opposite party's solicitor, notice of any rule, order or other proceeding taken at the clerk and master's office, affecting the party.

Code 1858, § 4423; Shan., § 6235; Code 1932, § 10520; T.C.A. (orig. ed.), § 21-906.

21-1-707. Notice of alteration of rules and orders.

The clerk and master shall not set aside, modify or alter any rule or order of the chancellor, where that power is given by this code; or any rule or order of the clerk and master's own at office without reasonable notice to the opposite party or the opposite party's solicitor.

Code 1858, § 4424; Shan., § 6236; Code 1932, § 10521; T.C.A. (orig. ed.), § 21-907.

NOTES TO DECISIONS

1. Deeding Property.

Former T.C.A. § 67-5-2706 did not expressly state that a clerk and master was empowered or directed to make a deed to a person who had exercised that individual's statutory right to redeem property; moreover, T.C.A. § 21-1-701, T.C.A. § 18-1-105, T.C.A. § 18-5-102, and T.C.A. § 18-5-103 did not provide that such a clerk was authorized to make a deed to one who has properly exercised his or her right of redemption, and therefore a writ of mandamus was properly denied in a case where a clerk and master refused to issue a fee simple deed to a redeemer in a tax sale since there was no mandate to do so, the action was taken on behalf of all of a decedent's heirs as tenants in common, and to do so would have conflicted with a trial court's order. Jones v. Anderson, 250 S.W.3d 894, 2007 Tenn. App. LEXIS 608 (Tenn. Ct. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 123 (Tenn. Feb. 25, 2008).

Part 8
Decrees and Execution

21-1-801. Sequestration.

If the court see proper in the first instance, or if upon issuance of the attachment, the delinquent cannot be found, a writ of sequestration may issue against the estate of the delinquent, to compel obedience to the decree.

Code 1858, § 4487; Shan., § 6304; Code 1932, § 10597; T.C.A. (orig. ed.), § 21-1206.

Cross-References. Seizure of person or property, Tenn. R. Civ. P. 64.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 300, 301, 311.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Collateral References. 70 Am. Jur. 2d Sequestration §§ 1-36.

30 C.J.S. Equity § 617.

Contempt cases, seizure or impounding of property in. 167 A.L.R. 713.

Contingent or defeasible future interest, right of owner of, to remedy by sequestration. 144 A.L.R. 796.

Jurisdiction of equity to sequester, or otherwise provisionally secure, assets for application upon money demand which has not been reduced to judgment. 116 A.L.R. 270.

Sequestration bond, liability of sureties on, for payment of judgment rendered against their principal, for so much thereof as includes damages for acts fraudulently or wrongfully committed prior to execution of bond. 100 A.L.R. 382.

Sureties on sequestration bonds as affected by judgment by consent, confession or default of principal. 51 A.L.R. 1493.

Sequestration 13.

21-1-802. Mesne and final process — Common law writs.

Courts of chancery are further authorized to issue such process, mesne and final, as has been used in the chancery courts; and all writs for the collection of money, or to obtain the possession of real or personal property, in use in the common law courts, may be adapted to the execution of decrees in the courts of chancery.

Code 1858, § 4488 (deriv. Acts 1787, ch. 22, § 2); Shan., § 6305; Code 1932, § 10598; T.C.A. (orig. ed.), § 21-1207.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 301.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

NOTES TO DECISIONS

1. In General.

Court of equity could act either in personam upon the person or by direct decree in correcting situation of failure of county superintendent of schools or other recalcitrant official to act in accordance with duties and could thereby eliminate possibility that county might lose its contribution of state funds. State ex rel. Bobo v. Moore, 207 Tenn. 622, 341 S.W.2d 746, 1960 Tenn. LEXIS 502 (1960).

Collateral References. 27 Am. Jur. 2d Equity § 252.

21-1-803. Foreclosure sale.

Where, upon the foreclosure of a mortgage or deed of trust, or in any case, the specified land to be sold is mentioned in the decree, the court, upon the application of the complainant, may order that:

  1. The property be sold on a credit of not less than six (6) months nor more than two (2) years;
  2. When the sale is made, reported and confirmed, no right of redemption or repurchase shall exist in the debtor or the debtor's creditors, but that the purchaser's title shall be absolute; and
  3. The surplus of the purchase money, or the bonds or notes taken for the purchase money, over and above what is necessary to pay the complainant's debt, be paid to the debtor or the debtor's other creditors entitled to the payment.

Code 1858, § 4489 (deriv. Acts 1832, ch. 36, § 2; 1833, ch. 47, § 2; 1837-1838, ch. 166, § 2); Shan., § 6306; Code 1932, § 10599; T.C.A. (orig. ed.), § 21-1208.

Cross-References. Injunction of sale, title 29, ch. 23, part 2.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 278.

Tennessee Jurisprudence, 16 Tenn. Juris., Judicial Sales, § 7; 21 Tenn. Juris., Redemption of Real Estate Sold for Debt, § 25.

Law Reviews.

Forms of Relief, 4 Mem. St. U.L. Rev. 400.

Tennessee Homeowners' Post Foreclosure Auction Right to Cure Under 11 U.S.C. §§ 1322(b) and (c), 27 U. Mem. L. Rev. 453 (1997).

Cited: Thomas v. Setliffe, 160 Tenn. 689, 28 S.W.2d 344, 1929 Tenn. LEXIS 143 (1930).

NOTES TO DECISIONS

1. Foreclosure Sale Free from Redemption.

It is a proper decree in foreclosing a mortgage or deed of trust, to order a sale of the land for cash, free from the equity of redemption, in accordance with the contract of the parties as embodied in their deed. Hill v. Hillman, 74 Tenn. 715, 1881 Tenn. LEXIS 202 (1881).

If the mortgage provides for redemption, it will not be barred on foreclosure sale, because the court's decree must conform to the contract of the parties. Clark v. Jones, 93 Tenn. 639, 27 S.W. 1009, 1894 Tenn. LEXIS 9, 42 Am. St. Rep. 931 (1894); Union Trust Co. v. Chattanooga E. R. Co., 101 Tenn. 297, 47 S.W. 422, 1898 Tenn. LEXIS 64 (1898).

2. —Prayer for Sale Free from Redemption.

Where prayer is that sale be made free of equity of redemption, it supports a decree for sale on credit so free. Myers v. Wolf, 162 Tenn. 42, 34 S.W.2d 201, 1930 Tenn. LEXIS 61 (1931).

3. —Prayer Lacking — Relief on Appeal.

Where land was sold in bar of equity of redemption without necessary prayer therefor, in the absence of any complaint that the land did not sell for its full value, the decree will on appeal be so corrected as to give the debtor two years after confirmation within which to redeem. Rigsby v. Marler, 17 Tenn. App. 136, 66 S.W.2d 232, 1932 Tenn. App. LEXIS 45 (Tenn. Ct. App. 1933).

4. Tax Sale Free from Redemption.

A decree for a sale of land free from redemption and on time is proper in a suit for the enforcement of the lien for taxes. State v. Duncan, 71 Tenn. 679, 1879 Tenn. LEXIS 131 (1879).

Collateral References. 47 Am. Jur. 2d Judicial Sales §§ 29, 30, 34, 38-41, 43, 45-52, 255.

Mortgages 500½-554.

21-1-804. Enforcement of orders and decrees.

Courts of chancery may enforce rules, orders or decrees by process against the person in default, or by process against the person in default's property.

Code 1858, § 4478 (deriv. Acts 1801, ch. 6, § 23); Shan., § 6295; Code 1932, § 10588; T.C.A. (orig. ed.), § 21-1209.

Cross-References. Enforcement of restraining orders and injunctions, Tenn. R. Civ. P. 65.06.

Execution of judgments by attachment for contempt, § 26-1-102.

Judgment for specific acts, court powers, Tenn. R. Civ. P. 70.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 300, 306.

Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 102.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

Cited: Kuykendall v. Wheeler, 890 S.W.2d 785, 1994 Tenn. LEXIS 353 (Tenn. 1994).

NOTES TO DECISIONS

1. Enforcing Consent Decrees.

It is an established rule that a court of equity has the power to enforce its decrees, and that such methods are available to enforce consent decrees. Clinchfield Stone Co. v. Stone, 36 Tenn. App. 252, 254 S.W.2d 8, 1952 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1952).

2. Enforcing Payment of Child Support.

The trial court, sitting as a court of equity, had the authority to impound the assets of the defendant in the hands of the executor to the extent necessary to enforce the prior order of the court and also impound the assets of the defendant to insure future payments of child support as the defendant was a nonresident of Tennessee. Mayer v. Mayer, 532 S.W.2d 54, 1975 Tenn. App. LEXIS 194 (Tenn. Ct. App. 1975).

Collateral References. 27 Am. Jur. 2d Equity § 252.

Judgment 851.

21-1-805. Issuance of attachment.

An attachment issues by order of the court upon the officer's return or affidavit of the service of a copy of the decree ten (10) days beforehand, and that the party has failed or refused to comply with the terms of the order.

Code 1858, § 4479 (deriv. Acts 1801, ch. 6, § 22); Shan., § 6296; Code 1932, § 10589; T.C.A. (orig. ed.), § 21-1210.

Cross-References. Judgments enforced by attachment, § 26-1-102.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 305.

21-1-806. Attachment without service of decree.

If the defendant in execution keeps out of the way or absconds, so that a copy of the decree cannot be served upon the defendant, or if the defendant evades receiving the decree, an affidavit of that fact, and that a copy of the decree was tendered the defendant, or left at the defendant's last place of abode, shall authorize the issuance of the attachment without actual service of the copy.

Code 1858, § 4480 (deriv. Acts 1801, ch. 6, § 22); Shan., § 6297; Code 1932, § 10590; T.C.A. (orig. ed.), § 21-1211.

Cross-References. Seizure of person or property, Tenn. R. Civ. P. 64.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 305.

Collateral References. Equity 438.

21-1-807. Commitment for nonperformance of decree.

In attachments for the nonperformance of decrees, no bail is to be taken, but the party shall be committed to jail, there to remain until the party performs the decree.

Code 1858, § 4481 (deriv. Acts 1801, ch. 6, § 23); Shan., § 6298; Code 1932, § 10591; T.C.A. (orig. ed.), § 21-1212.

Cross-References. Seizure of person or property, Tenn. R. Civ. P. 64.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 306, 376, 377, 462.

Law Reviews.

The Contempt Powers of Tennessee Courts (E. Michael Ellis), 37 Tenn. L. Rev. 538.

NOTES TO DECISIONS

1. Attachment for Nonperformance of Alimony Decree.

The general rule is that a person arrested upon an attachment to answer for a contempt is entitled to bail or to give a bond for his appearance; and it seems to be a practice to extend this rule to attachments for contempt in not paying alimony or support. But there is no authority for such a practice. The chancery rule is that an attachment for nonperformance of a decree, unlike other attachments for contempt, is not a bailable process; and the person attached for nonperformance must be committed to or detained in prison. Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873, 1949 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1949).

Collateral References. 17 Am. Jur. 2d Contempt § 13; 27 Am. Jur. 2d Equity § 252.

Contempt 19-26.

21-1-808. Habeas corpus on purge of contempt.

The court, or a judge of the court in vacation, may, in such case, grant a habeas corpus, and discharge the party, if the party purges the contempt, upon such conditions in respect to the party's compliance with the decree as the judge thinks proper.

Code 1858, § 4482 (deriv. Acts 1801, ch. 6, § 23); Shan., § 6299; Code 1932, § 10592; T.C.A. (orig. ed.), § 21-1213.

Cross-References. Habeas corpus proceedings, title 29, ch. 21.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 377.

Collateral References. 39 C.J.S. Habeas Corpus §§ 113, 193, 196, 205.

Habeas Corpus 22(2).

21-1-809. Hearing on habeas corpus.

The adverse party, the adverse party's agent or attorney is entitled to reasonable notice of the hearing upon the writ of habeas corpus granted pursuant to § 21-1-808, if in the state, and may interrogate the party in contempt upon the party in contempt's oath, and controvert the truth of the party in contempt's statements by other proof.

Code 1858, § 4483 (deriv. Acts 1801, ch. 6, § 23); Shan., § 6300; Code 1932, § 10593; T.C.A. (orig. ed.), § 21-1214.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 306, 377.

Collateral References. 39 C.J.S. Habeas Corpus §§ 113, 193, 196, 205.

21-1-810. Reinstatement of remanded cases.

In all cases remanded by the supreme court or court of appeals to any court for the execution of an order of reference, order of sale or for other proceedings directed in the decree of the appellate court or in the decree of the lower courts as affirmed or modified by the appellate court, the cases shall be deemed reinstated in the lower court from the time of filing with the clerk and master or clerk of the court a certified copy of the decree or mandate of the appellate court; and thereafter such cases may be proceeded in, in accordance with the decree of the appellate court, without any action of the lower court on the case. It shall not be necessary for the decree or mandate of the appellate court to be spread of record, in the lower court, by direction of the lower court, before the clerk and master, clerk of the court, or the parties may proceed in such case in accordance with the decree or mandate of the appellate court.

Acts 1901, ch. 10, § 1; Shan., § 6245a1; mod. Code 1932, § 10531; T.C.A. (orig. ed.), § 21-1217.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 316.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 257.

Cited: Wall v. Thalco, Inc., 614 S.W.2d 803, 1981 Tenn. App. LEXIS 489 (Tenn. Ct. App. 1981); Parrish v. Marquis, 137 S.W.3d 621, 2004 Tenn. LEXIS 250 (Tenn. 2004).

NOTES TO DECISIONS

1. Application Prior to Remand.

This section did not apply so long as cause was before appellate or supreme court. McArthur v. Faw, 183 Tenn. 504, 193 S.W.2d 763, 1946 Tenn. LEXIS 230 (1946).

2. In General.

When an appellate court remands an action to a trial court, the trial court regains jurisdiction over the matter. The trial court is constrained, however, by the appellate court's remand instructions, derived from the court's opinion and judgment on the issues presented during the appeal. Seaton v. Wise Props.-TN, LLC, — S.W.3d —, 2014 Tenn. App. LEXIS 250 (Tenn. Ct. App. Apr. 30, 2014).

Trial court erred in ruling that it was without jurisdiction to act upon a motion seeking to alter or vacate an order entered after remand following a prior appeal in the same matter because it did possess jurisdiction to act on pending motions following the remand from the appellate courts; the trial court had jurisdiction, once the case was remanded from the appellate courts, to conduct further proceedings that were not in conflict with the higher courts'  decisions. Pearson v. Koczera, — S.W.3d —, 2016 Tenn. App. LEXIS 707 (Tenn. Ct. App. Sept. 23, 2016).

Collateral References. 5 Am. Jur. 2d Appeal and Error §§ 959 — 977.

5 C.J.S. Appeal and Error § 978.

21-1-811. Notice of appellate decree.

Upon the receipt of any certified copy of decree, or mandate of any appellate court, the clerk and master or clerk of the lower court, shall file the decree or mandate, copy it upon the rule docket or minute book, if the court so directs, and notify the attorney of record in the case of the filing of the decree or mandate. The clerk and master or clerk of the lower court shall receive the same compensation for these services as now allowed by law for similar services; provided, that it shall not be necessary for the clerk of the lower court to send the notice if a procedure has been established whereby the clerk of the appellate court is required to send notice.

Acts 1901, ch. 10, § 2; Shan., § 6245a2; Code 1932, § 10532; T.C.A. (orig. ed.), § 21-1218; Acts 1983, ch. 332, § 1.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Cited: Wall v. Thalco, Inc., 614 S.W.2d 803, 1981 Tenn. App. LEXIS 489 (Tenn. Ct. App. 1981).