Akers v. Gillentine

On Petition to Rehear.

FELTS, J.

W. T. Grillentine petitions for a rehearing of so much of our former decree as adjudged him liable to complainant for $4,395.68, with interest, that being the *219 amount which complainant, as surety on his guardian bond, was compelled to pay on account of his defalcation.

Petitioner insists that he was not liable to a personal judgment because the Court had no jurisdiction of his person; and that we should have sustained his plea in abatement and dismissed the bill as to him.

We think he cannot rely on his plea in abatement. While the Chancellor did sustain his plea in abatement and the demurrer of his wife, the Supreme Court on the former appeal reversed the Chancellor’s decree, overruled the demurrer and the plea in abatement, and remanded the cause for answer and proof. The concluding-part of the Supreme Court’s opinion was, Tenn. Sup., 231 S. W. (2d) 369 : “For the reasons stated we conclude the Court below was in error in sustaining the demurrer and the plea in abatement. The cause is remanded for further proceeding consistent with this opinion. ’ ’

On the remand the defendants (petitioner, his wife, and two sons) all joined in filing a paper entitled “Plea and Answer to the Bill and Amended Bill. ’ ’ This paper began: “Comes the defendants Ray Gillentine, Jack Gil-lentine, W. T. Gillentine and Mrs. Vera Gillentine, and for their separate defenses to the bill and amended bill filed against them in the above styled cause they plead as follows.”

Then follow two paragraphs in which Ray Gillentine and Jack Gillentine state that they each reassert the defenses set up in their foimer demurrers. Then follows a paragraph in which petitioner undertakes to reassert the. same plea in abatement which had already been overruled on the former appeal by the Supreme Court, this paragraph being as ‘follows: “Comes the defendant W. T. Gillentine and interposes as his defense *220 to the bill and amended bill filed against him in this cause, his former plea in abatement heretofore filed in this cause, and reaffirms and adopts said plea as his defense to this suit and asks that said suit be abated as to him.”

Then follows a paragraph in which Mrs. Grillentine states that she does not waive the demurrer theretofore interposed by her but relying upon the same she “for further defense to the said bill and amended bill says:” Then follow nine more pages in which numerous matters are set up as defenses to the suit, among others, the former suit of her sons against her husband and complainant, to which she was not a party, as res adjudicata and estoppel against the right of complainant to maintain this suit against any defendants.

In'short, after petitioner’s plea in abatement had been overruled by the Supreme Court on the former appeal, he joined with the other defendants in a paper which was in form a reassertion of his former plea in abatement but in fact an answer through which his wife undertook to set up all possible defenses on the merits both in behalf of herself and him. And this paper was not sworn to or verified as a plea in abatement must be.

After this plea and answer was filed petitioner’s counsel participated in the taking of proof and in the hearing of the cause until the final decree by the Chancellor. The Chancellor’s decree shows that he treated the case as before him on the merits and disposed of it on the merits. He dismissed the bill as to all of the defendants because he found complainant had failed to prove that any of the ward’s funds had been used in the purchase of the land and had failed to prove that the proceeds of the Bay Grillentine note had been used to pay the debt of Mr. and Mrs. Grillentine to the bank.

*221 The opinion and decree of onr Supreme Court on the former appeal was a final adjudication. It overruled the plea in abatement now relied on, and remanded the cause for a defense on the merits. That decision on the former appeal is controlling and binding as the law of the case on the present appeal. Hunter v. Swadley, 141 Tenn. 156 , 207 S. W. 730 ; City of Bristol v. Bostwick, 146 Tenn. 205 , 240 S. W. 774 ; Going v. Going, 148 Tenn. 522 , 256 S. W. 890 , 31 A. L. R. 633; Oliver v. State, 164 Tenn. 555 , 51 S. W. (2d) 993 ; 5 C. J. S., Appeal and Error, Section 1832, p. 1286.

That decision was binding on petitioner on the remand. He could not reassert the same matter already determined against him; and when he undertook to do so by joining in this anomalous pleading, we think this constituted a general appearance. It could not be treated as a special appearance to file a plea in abatement which had been determined against him. Nor was this pleading verified as a plea in abatement must be. Nor did it undertake expressly to limit his appearance, nor could it have that effect impliedly as a plea in abatement.

All appearances are deemed to be general unless the contrary appears. The filing of any pleading, the making or resisting of any motion, the filing of exceptions to a master’s report, the taking of depositions to be read in the cause, the making of any agreement with the complainant or his solicitor, relative to any proceeding, in the cause, or any other act in the cause, between the filing of the bill and the rendition of the final decree, whereby the pendency of the suit is recognized expressly, or by necessary implication, will, if there be record evidence of the fact, constitute a general and unlimited appearance, unless limited by express declara *222 tion, or necessary implication. Gibson’s Suits in Chancery, 3rd Ed., Sec. 223; Rowsey v. Burkhead, 3 Tenn. Civ. App. 361, 369-372.

By joining in this plea and answer, and by participating through his solicitor in the taking of the depositions and the hearing, petitioner made a general appearance in the suit. The effect of such general appearance was to give the Court jurisdiction over his person and to enable it to render a decree against him for the money recovery allowed. Rowsey v. Burkhead, supra; Gore v. McDaid, 27 Tenn. App. 111 , 178 S. W. (2d) 221 ; Gibson, Sec. 224; Scholze v. Anderson, 12 Tenn. App. 637, 642 ; Transport Corp. v. Caldwell, 19 Tenn. App. 44 , 82 S. W. (2d) 571 .

The petition to rehear is overruled at petitioner’s cost.

Howell and Hickerson, JJ., concur.