205 Tenn. 197 | Tenn. | 1959
delivered the opinion of the Court.
The original bill was filed by Ralph Rogers & Company, Inc., on a sworn statement of account coming from Davidson County, Tennessee, against Allied Construction Company. The Allied Construction Company answered this bill denying that it owed the complainant any amount, and also, coupled with this answer, filed a cross bill against the Tennessee Asphalt Company, in which it asked for a judgment against them for some $200,000 which it alleged the Tennessee Asphalt Company owed them for defective paving done under a contract dated April 8, 1955. It alleged in this answer and cross bill that any claim that the Ralph Rogers & Company, Inc., had against them on the account on which they were sued grew out of the defective work that Ralph Rogers & Company, Inc., did as a sub-contractor for the Tennessee Asphalt Company in doing the work under the contract
The Tennessee Asphalt Company filed its answer to this cross bill of the Allied Construction Company denying that the work done under the contract of April 8,1955, with Allied Construction Company was defectively done, but asserting that, if so, it was done by the original complainant Ralph Rogers & Company, Inc., as it, Tennessee Asphalt Company’s subcontractor. It prayed that its answer be treated as a cross bill against the original complainant, Ralph Rogers & Company, Inc., and asked that should the work done be found defective that for any decree granted in favor of Allied Construction Company, that it be granted a decree over and against the original complainant, Ralph Rogers & Company, Inc.
The original complainant, Ralph Rogers & Company, Inc., thereupon moved the court either to dismiss the cross bill filed against it or to grant a severance because the cross bill brought “in a third party defendant based upon a contract which was not the basis on which the suit was originally brought by the original complainant.”
The Chancellor granted the severance and also granted Allied Construction Company a discretionary appeal to his so ordering a severance. Briefs have been filed and after considerable study and investigation on the matter we now have it for determination.
The answer of the Tennessee Asphalt Company to the cross bill of Allied Construction Company denies that any work that it did for Allied Construction Company was done defectively but says that if it was done defectively Ralph Rogers & Company, Inc., its sub-contractor, did this defective work and thus it is asked that Ralph Rogers & Company, Inc., the original complainant in the original bill be made a party defendant and that any judgment allowed Allied Construction Company for defective work, if any, be taken against Ralph Rogers &
Tbns it is seen by the original bill and answer and cross bill bringing in the Tennessee Asphalt Company and the answer and cross bill to the Tennessee Asphalt Company’s cross bill brings all parties before the Court where the Court can reach a just and final conclusion as to all matters. It is shown by these pleadings that the sworn account upon which the original bill was based necessarily grew out of work that it had done as a sub-contractor for Tennessee Asphalt Company and that Tennessee Asphalt Company was the general contractor with Allied Construction Company. Under this state of the pleadings it seems to us that in order to do justice that all parties must necessarily be involved in the proof herein of all three bills, answers and cross bills.
The argument of Ealph Eogers & Company, Inc., in support of the Chancellor’s allowing the severence is based on various propositions. The first being that the allowance of a severance is a discretionary matter with the trial court or the Chancellor who tries this case below. The basic case for such a rule is Tyson v. Netherton, 53 Tenn. 19. In this case the Court lays down this unquestioned rule that the allowance of a severance is a discretionary matter. The facts upon which this rule is laid down is in a law case where one defendant sought to have a severance between himself and another defendant so that he might use the other defendant as a witness on his behalf in his trial. This general proposition that the granting of a severance is a discretionary matter has been followed in other cases and is unquestionably a sound rule when the record shows that the action of the
We think that under the allegations herein, that is, the original bill and the answers and cross bills herein, that it is necessary that all of these actions be tried together and not be severed. If they were and are severed the original complainant is not going to escape any taking of proof or things of that kind in the end because this original complainant in the end must defend the cross bill of Tennessee Asphalt Company — all actions are so combined when looking at it from a broad standpoint that equity and justice demands that they be tried together. It is true that on a mere sworn account in the first instance Rogers & Company, Inc., might get a judgment on it as it stands without the necessary proof that is required under the other cross bills herein but in the end it all necessarily involves the same thing, all parties are necessarily parties thereto.
It seems to us that a liberal reading of the Statute, Section 21-620, T.C.A., necessarily means that new parties defendant may be brought into a Chancery lawsuit by answer and cross bill even though the first
“Tbe defendant may file bis answer as a cross bill, or in tbe natnre of a cross bill, not only against tbe original complainant, bnt against any other defendants to tbe original bill; and nnder it may bave brought before tbe court new parties; all as if be were filing a cross bill proper. ’ ’
Tbis Code Section is based on Chapter 11, Sec. 1, of tbe Acts of tbe Legislature of 1921. A reading of tbis Section shows plainly that it was tbe purpose of tbe Legislature in enacting it that new parties might be brought in. Tbe Section reads, or tbe wording thereof is slightly different from that here and includes in it, after tbe quoted language:
“* * * not only against tbe original complainant or complainants, but against any other party or parties defendant to tbe original bill; and may also bring in new parties by said answer and cross-bill just as if it were a separate cross-bill.”
Tbe codifiers of tbe 1932 Code modified it slightly from tbe original Act of 1921 to tbe language as quoted above. It is now in tbe present Code. We do not think, though, that tbis Code Section prohibits an action as is here brought. Tbe Code Section is not prohibitory but permissive. Clearly when you bave no prohibitory legislation from bringing an action as here brought tbe Chancellor who bears these matters would bave a right when these things are brought to bis attention, and it is shown to him, clearly that all grew out of tbe same thing, to
This Court in its very early days in Hildebrand v. Beasley, 54 Tenn. 121, said:
“The elementary authorities hold that a cross-bill must be confined to matters growing out of the original bill; and according to some authorities new parties cannot be introduced into a cause by a cross-bill. See 2 Daniel Ch.Pr. 1647, citing 17 Howard, 145. But under our practice we should not be inclined to carry the doctrine so far. * * *.
“It is the policy of the law to prevent a multiplicity of suits, and upon the facts stated in the cross-bill, the relief to which the plaintiff may be entitled therein could not be fully given without mating Fort a party. ’ ’
It is true that before the Statute (Sec. 21-620, T.C.A.) in an answer filed as a cross bill new parties cannot be brought before the Court. Pollard v. Wellford, 99 Tenn. 113, at page 121, 42 S.W. 23, at page 25. Since that time the modification in the Code above giving permissive rights to bring in certain of the parties as shown in the language of the statute has been enacted. We take it, though, that even under the language above quoted from the Hildebrand case the Court found on the limitation of questions of the kind and more or less indicated that where it was necessary to do complete justice to all parties that they should all be tried in one lawsuit.
The author of American Jurisprudence, in Vol. 19 thereof, page 233, Sec. 330„ makes this very sound observation.
*207 “The prevailing view is that new parties may be brought in as defendants to a cross bill, if their pres.ence seems to be necessary to a proper determination of the matters involved in the cross bill or if the cross bill seeks appropriate affirmative relief and the new parties are necessary to the granting of snch relief. ’ ’
Then too, nnder the broad equitable principle that equity desires to do complete justice in the premises as to the subject matter under the maxim that courts of equity “delight to do justice, and not by halves.” That is to say, in a measure every such case must be governed by what is convenient and equitable under its own facts, subject to the recognized principles of equity. Thus it is said in Gibson’s Suits in Chancery, Fifth Edition, Yol. 1, Sec. 47, page 58, that:
“Hence, the Court requires that all persons interested, either legally or beneficially, in the subject matter of the suit shall be made parties to it, either as complainants or as defendants, so that there may be a decree that will bind them all.”
A very forceful argument is likewise made herein on behalf of the appellee, Ralph Rogers & Company, Inc., that to try these three matters together that they present multifarious propositions. We do not think so. The rule or multifariousness is not that all the parties have an interest in all the matters in controversy but that it is sufficient that each defendant has an interest in some of the matters involved and they are connected with the others. When we apply such a rule under the averred facts herein the matters are in no way multifarious— they each have a connection with the other.
On Motion to Dismiss Discretionary Appeal.
On May 25,1959, Ralph Rogers & Company, Inc., filed with the Clerk of this Court a motion to dismiss the discretionary appeal of Allied Construction Company herein. The discretionary appeal had been granted in the Chancery Court and the cause by inadvertence originally appeared to the Court of Appeals, Eastern Division, which court had properly transferred the case to this Court. The case was submitted to us on May 2,1959, with the assignments of error, briefs, etc., of the respective parties. On this record we, after due deliberation, conference and consideration, determined that the Chancellor was in error in granting the severenee and prepared an opinion to this effect (filed herewith) and remanded the matter to the Chancery Court for further pleadings and proof, etc.
The motion now filed comes after we had completed our study, conference and investigation of the matters presented originally. Regardless of the lateness of this motion we have and are giving it due consideration. The motion is based on Code Section 27-305, T.C.A., and is to the effect that this Section does not permit such a discretionary appeal because it does not settle the rights of the appealing party and less than all parties have prayed the appeal.
A discretionary appeal may be granted from an interlocutory decree where such an allowance would aid the Chancellor as a guide to a final disposition of the determination of the cause. Hyder v. Hyder, 16 Tenn.App. 64, 66 S.W.2d 235.
A discretionary appeal such as allowed by the Chancellor herein ordinarily will not be dismissed on motion, as having been improvidently granted, unless there is a gross and palpable abuse of discretion. Crawford v. Aetna Life Ins. Co., 59 Tenn. 154; Cory v. Olmstead, 154 Tenn. 513, 290 S.W. 31.
In considering this motion and by a study of the opinion that we have filed herein it is found that the severance granted by the Chancellor was based upon motion of the now movant, Ralph Rogers & Company, Inc., upon the idea that the cross bill brought in a third party defendant upon a contract which was not the basis of the original action. Apparently the Chancellor was in doubt as to whether or not the causes should be tried together and rather than to go through a long period of time in taking proof, etc., and getting a final determination in trying all the cases together he, in his discretion, which we think was a sound one and was not an arbitrary action on his part, granted this discretionary appeal to determine the question.
For these reasons we think that the motion to dismiss the discretionary appeal should be disallowed and the opinion in the original matter as this day released should stand. The motion to dismiss is accordingly disallowed.