The opinion
*635 On PETITION TO ReHEAE.
On petition to rehear, to justify its filing as well as to escape its dismissal for reargument and reiteration, it is insisted that the Court overlooked “a material fact,” (Rule 32, 173 Tenn., 886 , 887), in that the Court failed to notice that in the record application had been made by one of the parties for the hearing of the case on oral testimony.; that the case was so heard under section 10564 of the Code, and being a Chancery cause, was reviewable on broad appeal under section 9036 of the Code.
In the petition to rehear, the following is quoted from our former opinion (page 633):
‘ ‘ tried on oral testimony on the order of the Chancellor, without agreement of the parties, and on no application from either of them . . (Emphasis ours.) and then in the petition, to show what took place at the time of the entry of order to try on oral testimony, the following is quoted from the record:
“Mr. S. P. Fowler: Tour Honor, before we start, I think it is proper to enter an order of this kind, bearing in mind this is not the Chancery Court, but your Honor is sitting as a special tribunal.”
The order so entered says:
“It is ordered that this cause shall be heard and tried upon the oral testimony "of witnesses introduced in open Court and exhibits thereto and such documentary evidence as may be offered and admitted. The same being required by justice and the advisability of an expeditious trial of the case, and upon such depositions as may be unavoidably necessary. •
“Came the defendant C. W. Wright, and requested that the decision of the Court be given in writing, stating the facts found and the conclusions thereon, and it is. or *636 dered that evidence of such, request shall be placed upon the minutes of the Court by the entry thereon of this order. The Chancellor, on {September 2, 1942, granted the defendant until September 21,1942, within which time to file his answer, and set the cause for hearing at Huntsville on Monday, Sept. 28, 1942, and this part of this order is entered now for then. ’ ’
Clearly the first paragraph of the order is by the Chancellor sua sponte, the second is on application of one of the parties.
The cause was not tried on oral testimony under authority of section 10564 of the Code, on agreement of the parties or application of one of them. It was tried on oral testimony because the Chancellor was sitting as a Special Tribunal (Code 2123), and as such under Code, section 2125:
“The testimony in such contest may be taken orally or in depositions, upon such notice as the chancellor may prescribe . 1 .” (Emphasis ours.)
That is what the Court intended to say and said in the foregoing quotation from the former opinion; and that is what counsel clearly recognized by the language he used in presenting the order in the above excerpt from the record.
However, the case was important in that it involved the tenure of a public office, and it had been warmly contested and ably and carefully argued and briefed by both sides. The question of the necessity of a motion for new trial in a case where the Chancellor as a Special Tribunal hears a contest for judicial office had not been determined by any previous reported decision of this Court and we were therefore unwilling to dismiss the appeal solely on this technicality of pleading.
*637 We reviewed the record and determined that the Chancellor had made a finding of facts which, incorporated in his final decree, was clear, comprehensive and complete. It fills twelve pages of the record, and, to illustrate the care with which he supported his decisions, he makes five specific citations to the testimony of as many witnesses to justify his conclusion on a single contested vote. His other findings are similarly supported by specific citations to evidence. We found, therefore, that the decree of the Chancellor was supported by material evidence.
The sole question presented on the appeal was one of fact: — the determination of the actual number of votes received by the eontéstant and the contestee respectively.
It has been held in many previous decisions of this Court that where a cause is heard by the Chancellor on oral testimony and his findings of fact are supported by material evidence that such findings will not be disturbed on appeal. Smith v. Grizzard, 149 Tenn., 207, 210 , 259 S. W., 537 , and cases there cited. The same rule has been applied without exception in the Court of Appeals, in cases where certiorari was denied by this Court. Williams v. Cantrell, 22 Tenn. App., 443 , 124 S. W. (2d), 29 ; Higgins v. Lewis, 23 Tenn. App., 648 , 137 S. W. (2d), 308 ; Webster v. Trice, 23 Tenn. App., 365 , 133 S. W. (2d), 621 .
Therefore we intimated, that even if the bill of exceptions had been properly before us after the action of the Chancellor on a motion for a new trial, we would have affirmed his decree. 177 S. W. (2d), at pages 822, 823.
We find no merit in the petition to rehear and it is denied.