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).

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).

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, (§§ 49-5-601 — 49-5-604) or the Open Meetings Act, (§§ 8-44-101 — 8-44-106) 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.

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.

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.

21-1-201. 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.

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).

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).

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