Appendix — Turner v. Bell

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APPENDIX

ADELAIDE TURNER, Gua-dian of Lyda Louise Bell,

a non compos mentis,

v.

THERON 0. BELL, et al.

SUPREME COURT OF TENNESSEE

March 11, 1955

Rehearing Denied May 6, 1955

Matthews, Walsh & Thompson, Memphis, for plaintiff

in error.

Albert G. Riley and Howard W. Pritchard, Memphis,

for defendants in error Theron Bell and Brooks and Anna

Mae Monaghan.

Thomas R. Price and Canada, Russell, Turner & Alex-

ander, Memphis, for defendants in error R. G. Gill, Trus-

tee, and Provident Mut. Life Ins. Co. of Philadelphia.

RIDLEY; Special Justice.

As the plaintiff in error in this Court and the complain-

ant below, and the defendants in error in this Court and

the defendants below are the same, in this opinion they will

be referred to as plaintiff and defendants.

On September 15, 1953, Adelaide Turner, guardian of

Lyda Louise Bell, filed her original bill in the Chancery

Court of Shelby County, Tennessee, against the defend-

ants, Theron O. Bell, R. G. Gill, Trustee, Provident Mutual

Life Insurance Company of Philadelphia, Carl A Robin-

son, Trustee, Brooks V. Monaghan, and wife, Anna Mae

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Monaghan, seeking to have declared void ab initio a decree

of divorce granted to Lyda Louise Bell from C. A. Bell,

deceased, on July 8, 1933, by the Cireuit Court of Shelby

County, Tennessee, to have the marriage ceremony between

C. A. Bell and the defendant, Theron O. Bell, on August

18, 1935, declared void ipso facto, to have decreed to plain

tiff’s’ ward homestead and dower in an undivided one-half

interest in certain properties, and seeking to have such

homestead and dower rights declared paramount to those

rights acquired by the other defendants by reason of cer-

tain deeds and mortgages executed by the said C. A. Bell,

deceased, and the defendant, Theron O. Bell.

[1] All of the defendants demurred to this original bill

and therefore, of course, the facts under a reasonable con-

struction thereof as alleged in the bill and the exhibits

thereto for the purposes of this cause are true. Those facts

necessary to an adjudication of this cause are as follows:

On or about November 8, 1911, Lyda Louise Bell, the

plaintiff’s ward and C. A. Bell were married in Memphis,

‘l'ennessee, and lived there as husbamd and wife until No-

vember 6, 1931, when Lyda Louise Bell was adjudged in-

sane and ordered committed to Western State Hospital by

order of the County Court of Shelby County, Tennessee, in

proceedings under Chapter 17 of the Public Acts of 1919.

At that time under this proceeding no guardian was ap-

pointed. She apparently remained in Western State Hos-

pital at Bolivar for a brief period of time after which she

returned to Memphis and resumed and continued the mar-

ital relations with C. A. Bell until July, 1932.

On June 26, 1933, C. A. Bell filed suit for divorce against

Lyda Louise Bell in the Circuit Court of Shelby County

under which process issued and personal service was had.

On July 8, 1933, the said Lyda Louise Bell in her own name

filed an answer and cross-bill which was signed by two rep

utable firms as her solicitors and which was signed and

sworn to by her on July 7, 1933, strictly in accordance with

the oath prescribed by statute. Process issued under this

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eross-bill and was served on the cross-defendant, C, A. Bell,

who filed an answer thereto on July 13, 1933, denying all

material allegations thereof. On J uly 8th a motion for ali-

mony and attorney's fees pendente lite had been heard and

overruled by the Court. This cross-bill of Lyda Louise Bell

sought process, a divorce from bed and board, alimony and

attorney’s fees permanent and pendente lite, and general

relief.

he case of C. A. Bel] against Lyda Louise Bell was heard

in the Cireuit Court of Shelby County, Tennessee, on No-

Under this state of facts the plaintiff contends that the

divorce decree granted to Lyda Louise Bell on November 8,

1933, is void for (1) fraud, (2) lack of jurisdiction in the

Cireuit Court of Shelby County. The defendants contend

(1) that said decree is valid, (2) if not valid is merely void-

able and (3) if voidable this is a collateral attack thereupon

and that a collateral attack will not lie upon a voidable

decree, :

The fraud relied upon by the plaintiff is alleged in her

original bill in the following language, to-wit:

‘That on the 26th day of June, 1933 and subsequent

to the said Lyda Louise Bell being adjudged insane,

the said C. A. Bell filed a bill for divorce, case No.

32968, R.D. in the Circuit Court of Shelby County,

Tennessee, against the said Lyda Louise Bell, who at

the time, was a non compos mentis, and fraudulently

failed to disclose therein and disclosed said fact in his

pleadings only when he answered the alleged cross-bill

of complainant’s ward, the fact that his wife had been

previously adjudged insane; that no Guardian ad litem

was appointed in said divorce case.’’

The fact of Lyda Louise Bell’s mental condition was dis-

closed to the Court in this divorce proceeding by a cross-

bill signed and sworn to by her containing the following

Janguage, to-wit:

‘‘That, in November 1932, after telling cross-defend-

ant that he was taking her to a picture show, he drove

her to the Western State Hospital for the Insane at

Bolivar, Tennessee, where, against her will, he had her

confined for a period of several months.

‘«That, after her release from that institution, where

she was unjustly detained, she was allowed to return

to the home of the parties, whereupon cross defendant

‘old her that if she ever said anything to him or about

him, or otherwise interfered with his personal affairs,

he would have her confined again.”’ -

Plaintiff’s answer to this cross-bill contains the following

language:

‘‘he denies that he did anything wrong in committing

her to the State Hospital at Bolivar, as said commil-

ment was aceording to law and under the authority of

the County Court Chairman, and under the advice of

eminent physicians. He further denies that she was

unjustly detained in said institution.’’

[2] Under these circumstances it is clear that, even if

defendant attempted to practice a fraud upon the Court by

concealment of a necessary fact in his original bill, such

ina

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fraud was not successful. All necessary facts were dis-

closed to the Court by the pleadings themselves. The di-

vorce was not granted to the plaintiff under his original

C. A. Bell died intestate on May 27, 1953, seized and pos-

sessed of certain real property set out and described in the

bill which was conveyed to him and his wife Theron O. Bell

as tenants by the entirety subsequent to August 18, 1935,

parts of which are now held by other defendants as their

successors in title.

The original bill seeks (1) homestead and dower in real

property; (2) a declaration that the marriage ceremony of

U. A. Bell and Theron 0, Bell is void; (3) the ¢ -elaring sec-

ondary of ceriain deeds and mortgages in order to obtain

paramount title to this homestead and dower.

[3,4] In Jordan vy, Jordan, 145 Tenn. 378, at page 454,

239 S.W. 423, at page 445, the difference between a direct

attack and a collateral attack is clearly defined. In that

ease the Court said:

“**Tf an action or proceeding is brought for the very

purpose of impeaching or overturning a judgment, it

is a direct attack upon it, such as a motion or other

proceeding to vacate, annul, cancel or set aside a judg-

ment, or any proceeding to review it in an appellate

court, whether by appeal, error, or certiorari, or a bill

of review, or, under some circumstances, an action to

quiet title. On the other hand, if the action or proceed-

ing has an independent purpose and contemplates some

other relief or result, although the overturning of the

judgment may be important, or even necessary to its

Success, then the attack upon the judgment is ecol-

lateral.’ 23 Cye, 1062.” ;

This is a collateral attack. McCartney v. Gamble, 184

Tenn. 243, 198 S.W.2d 592; Jordan v. Jordan, 145 Tenn. 378,

——

ee

239 S.W. 423, 433; Hawkins v. The Manhattan Savings

Bank & Trust Co., 1947, opinion of Court of Appeals, West-

ern Division, unreported, adopting an opinion by then

Chancellor John E. Swepston; 31 Am.Jur., Judgments, See.

611 page 204.

The plaintiff admits that this is a collateral attack when

in her reply brief she says.

‘*Both groups of appellees have raised in their re-

spective briefs the question of collateral attack which

is nothing more than a straw-man, as big, shaggy and

frightening as they could make it, but which has |

nothing more to do with this lawsuit than a vegetable

garden scarecrow.’’

The single object of the suit at bar is to obtain for Lyda

Louise Bell homestead and dower in the real property of

U. A. Bell, deceased, although in order to do this it is neces-

sary to declare void the divorce decree, the marriage with -

Theron O. Bell, and to have Lyda Louise Bell’s claim to

homestead and dower declared superior to the claims of

those holding under C. A. Bell and Theron O. Bell as

grantees and mortgagees.

Being a collateral attack it will only lie against a decree

void ab initio.

‘‘Void judgments and decrees being those that appear on

the face of the record itself to have been rendered without

jurisdiction of the parties or the subject matter, or without

being justified by the pleadings or the consent of the parties,

void judgments have no efficacy or probative force, and

yield to collateral attack.’’ Gibson’s Suits in Chancery 4th

Kdition, See. 446, p. 387.

[5] A collateral attack will not lie against a decree valid

on the face of the record voidable only for fraud, accident,

mistake or for some other defect. McCartney v. Gamble,

184 Tenn. 243, 198 S.W.2d 552; Magevney v. Karsch, 167

_—

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Tenn. 32, 65 S.W.2d 562, 92 A.L.R. 343; Gibson’s Suits in

Chancery (4th Ed.) See. 446,

. The plaintiff insists that the divorce decree of November

8, 1933, is void ab initio since Lyda Louise Bell was declared

insane under Chapter 17 of the Public Acts of 1919, Code

§ 4433 et seq., on the 6th day of November, 1931, and had

never been restored in accordance with the procedure pro-

vided in Chapter 102 of the Acts of 1921, Sections 9656 and

9659 of the Code; that therefore, she could not maintain an

action for divorce in her own name as was done under her

eross-bill; that the Court could not acquire jurisdiction of

the cause of action or of her person, unless her cross-bill

was sworn to by her strictly in the language of the statute

and unless she had the mental capacity to possess the requi-

site personal volition to seek the divorce and the nece

mental capacity to take the oath, that having been adjudged

incompetent she conclusively as a matter of law so remained

and therefore cou!d not possess this volition or this

capacity.

[6] The original bill including the exhibits thereto and

the three demurrers of the various defendants were suffi-

cient to raise this issue. In the case of Jackson v. Van

Dresser, 188 Tenn. 384, 219 S.W.2a 896, 899 the Court did

8&y:

‘*We are of the opinion that by reason of Chapter

102 of the Acts of 1921, being [Code] Sections 9656-

9659, an adjudication of insanity is conclusive evidence,

as a matter of law, of a continuation of that status until

the person adjudged insane has subsequently been de-

clared of sound mind by a decree entered pursuant to

the provisions of those Code Sections, and that the

Chancellor was, therefore, correct in declaring void the

deed and deeds of trust in question.’’

But this statement must be considered with reference to

the cireumstantes of the case before the Court. Magevney

*. Karsch, 167 Tenn. 32, at page 40, 65 S.W.2d 562.

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However, in the discussion leading up to this conclusion

it seems to us that the Court was referring to contracts of

persons decreed of unsound mind under Chapter 17 of the

Acts of 1919. In the discussion leading up to this conclu-

sion the following quotations appear:

‘‘Until the enactment in 1919 of the Insanity Law for

State Hospitals, jurisdiction to declare persons of un-

sound mind and take control of their property was

vested in the County Court by an enactment of 1797,

Code Sections 9613-9621, and extended to Chancery

Court by an Act of 1851, Code Sections 9622-9636.

During all this period there was no statutory provision

giving any Court jurisdiction to ascertain and judi- .

cially declare a restoration to sanity. Possibly, in

herent authority to so declare was had, however, by

the Court rendering the decree of insanity.

‘*As a result of the situation just stated, it seems to

have been consistently held by our Courts until the

enactment of Chapter 102 of the Acts of 1921, Code '

Sections 9656-9659,, that an adjudication of insanity is

only prima facie evidence of such status when there is

called into question a contract made by a person subse-

quent to the decree adjudging such person a lunatic,

Thomasson v. Kercheval, 29 Tenn. 322, 323, 324;

Haynes v. Swann, 53 Tenn. 560, 587; McDowell v. Mor-

rell, 73 Tenn. 278, 279, 285... .

‘«The annotator in 68 A.L.R. page 1314, after observ-

ing that there is a conflict of authority upon whether

an adjudication of insanity is conclusive or prima facie

evidence of subsequent incapacity to contract, * * *.

‘*In considering the legal effect of the 1921 Act,

there is at once suggested the question as to why the

law was enacted. The answer seems apparent. As re-

flected by numerous of our reported decisions, the

prima facie evidence rule existing at least until the en-

actment of the 1921 Act was productive of considerable

litigation throughout the years and left disturbed and

unsettled the quiet assurance of title to property which

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had been conveyed by persons previously adjudged

was enacted to eliminate that situation.’

This decision brought to an end a long period of uncer-

tainty in regard to the contracts of persons once declared

incompetent who were not later declared competent in any

manner provided by statute. Therefore the holding in the

case of Jackson y. Van Dresser, supra, is the law of this

State and should remain so.

Tn other States the majority rule is definitely that a per-

son once declared insane cannot sue for a divorce in the

name of his guardian, or committee, or next friend.

Mohrmann y. Kob, 291 N.Y. 181, 51 N.E.2d 921, 149 A.L.R,

1284; 70 A.L.R. 964-965, citing cases from many States; 17

Am. Jur., Divorce & Separation, §§ 270, 272; Hinkle v. Love-

lace, 204 Mo, 208, 102 S.W. 1015, 11 L.R.A,, N.S., 730;

Mohler v. Shank’s Estate, 93 Iowa 273, 61 N.W. 981, 34

4R.A, 161; 130 Am.St.Rep. p. 853. ;

In laying down the majority rule these authorities cite

Worthy v. Worthy, 36 Ga. 45; Bradford y, Abend, 89 Ill, 78;

Mohler vy. Shank’s Estate, 93 Iowa 273, 61 N.W. 981, 34

L.R.A. 161; Birdzell y. Birdzell, 33 Kan. 433, 6 P. 561; Dil-

lon v. Dillon, Tex. Ciy, App., 274 S.W. 217; Johnson vy.

Johnson, 294 Ky. 77, 170 S.W.2d 889; Higginbotham v. Hig-

ginbotham, Mo. App., 146 S.W.2a 856; Mohrmann y, Kob,

botham v. Hughes, 348 Mo. 1073, 156 S.W2d 650; Dillon v.

Dillon, Tex.Civ.App., 274 S.W. 217; Stevens v. Stevens,

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266 Mich. 446, 254 N.W. 162; But this holding is dicta in the

Michigan case as the adjudication of insanity was void.

(2) Lack of the requisite personal volition to seek a di-

vorce. 130 Am.St.Rep. 842; Stevens v. Stevens, 266 Mich.

446, 254 N.W. 162; Cowan v. Cowan, 139 Mass. 377, 1 N.E.

152; Dillon v. Dillon, Tex.Civ.App, 274 SW 217; 17 AmJur

Divorce & Separation, Sec 272 citing cases from Ga., Ill,

_ Towa, Kan. and Texas; Woodruff v. Woodruff, 215 N.O.

685, 3 S.E.2d 5.

The minority rule is also laid down in these authorities,

citing Cowan v. Cowan, 139 Mass. 377, 1 N.E. 152; Cohn v.

Carlisle, 310 Mass. 126, 37 N.E.2d 260; Campbell v. Camp-

bell, 242 Ala. 141, 50 So.2d 401; Hopson v. Hopson, 257 Ala.

140, 57 So.2d 505.

In Massachusetts this minority rule is based on the

statute of that State.

In Alabama this minority rule is based upon a statute of

general application allowing suits for persons of unsound

mind to be maintained by guardians or next friends, which

the court construing with its divorce statutes holds suffi-

cient to allow the maintenance of a divorce suit by such

guardian and next friend in behalf of the person adjudged

incompetent.

There are also cited in support of this minority rule two

English cases which it is unnecessary here to discuss.

In the New York case of Mohrmann v. Kob, supra, there

is a strong dissenting opinion by Justice Thatcher con-

eurred in by Justice Rippey. However, Justice Thatcher

bases his dissent upon a statute of the State of New York.

his case is discussed at length in Mohrmann v. Kob, 291

N.Y. 181, 51 N.E.2d 921, 149 A.L.R. 1284.

The decision of the case at bar requires a searching in-

quiry into these two reasons upon which the majority rule

is based.

_—

Chapter 17, Section 2 of the Pub. Acts of 1919, defines

insanity as follows:

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“Insane: By insane is meant any person who by

reason of unsoundness of mind is incapable of manag

ing his own estate, or is dangerous to himself or others ;

if permitted to go at large, or is in such condition of

mind or body as to be a fit subject for care and treat-

ment in a hospital or asylum for the insane. No person,

idiot from birth, or whose mental development was ar-

rested by disease or physical injury occurring prior to

the age of puberty, and no person who is afflicted with

simply epilepsy is regarded as insane, unless the mani-

festations of abnormal excitability, violence or homi-

cidal or suicidal impulses are such as to render his con-

finement in a hospital or asylum for the insane a proper

precaution.’’

[7] The real purpose of an inquisition of lunacy is to

secure the commitment of the alleged lunatic to an institu-

tion when it is not safe for such person to be at large or to

obtain an appointment of a guardian of his person and/or

of his property to preserve it from waste. Reynolds v. Rey-

nolds, 181 Tenn. 206, at page 214, 180 S.W.2d 894. Is then

a person declared incompetent under Chapter 17 of the Acts

o£ 1919 conclusively presumed as a matter of law to be in-

ewpable of possessing the requisite personal volition to seek

a divorce, and to .uck the capacity to take the required oath?

As above stated, the majority rule answers this question in

the affirmative. However, the States of Massachusetts and

Alabama hold to the contrary. In Massachusetts it is held

that a person of unsound mind may sue for divorce by his

guardian or committee, but this is besed upon a statute so

froviding. Cowan vy. Cowan, 139 Mass. 377, 1 N.E. 152;

Cohn v. Carlisle, 310 Mass. 126. 37 N -E.2d 260.

In Alabama it is held that person adjudged incompetent

lay maintain an action for divorce in the name of his guar-

dian or next friend. The Alabama Court bases this opin-

ion upon a general statute authorizing persons adjudged

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of unsound mind to sue in the name of a guardian or next

friend construing this general statute in pari materia with

its divorce statutes. Campbell v. Campbell, 242 Ala. 141,

5 So.2d 401; Hopson v. Hopson, 257 Ala. 140, 57 So.2d 505,

[8] A divorce action is purely statutory and in order to

give the Court jurisdiction the statute must be strictly com-

plied with including the taking of the oath to a divorce bill

in the language of the statute. De Armond v. De Armond,

92 Tenn. 40, 20 S.W. 422; Carter v. Carter, 28 Tenn.App.

478, 191 S.W.2d 451.

[9] In those states denying to a person adjudged insane

the right to sue by guardian or next friend, it can readily be

seen that such guardian or next friend, in the absence of a

statute authorizing him so to do, cannot take the necessary

oath for his ward, only the ward can swear for himself. No

person may swear in a representative capacity, an oath is

personal.

In none of the cases denying to a person adjudged insane

the right to sue for a divorce because of lack of the requisite

personal volition to seek the same is there any statute

quoted such as Section 8445 of Williams Code of 1934,

which is as follows:

**8445 4220 (2467). Relief by annulling marriage or

decreeing separation or other decree.—But if the court

be of the opinion that the complainant is entitled to

relief, it may be granted, according to the prayer of

the bill, by annulling the marriage, or by ordering a

separation, perpetual or temporary, or such other de-

cree as the nature and circumstances of the case

require.’’

[10] Under this statute it has been held and is now the

law in Tennessee that an absolute divorce may be granted

tv a party seeking only a separation from bed and board

and that an absolute divorce may be so granted over the

active opposition of such party, Lingner v. Lingner, 165

Tenn. 525, 56 S.W.2d 749, 752. In this case, the Court speak

ing through Chief Justice Green said:

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**In the case before us, however, the parties are ma-

ture. The chancellor, who had these people before him,

together with their kinsfolk, has found that their mu-

tual feelings have reached such a degree of hostility as

to make a reconciliation impossible; that a limited di-

vorce would only prolong a bad situation that society

had no interest in preserving. We agree with the chan.

cellor. This is not a doubtful case such as Rutledge v.

Rutledge, supra [37 Tenn. 555, 5 Sneed 555], and those

that follow it. The wishes of neither party in a divorce

case control the actions of the court. The court, of

course, gravely considers the desires of the party

wronged, but the court reserves the right to determine

for itself what is best for that party. We can see no

good that would accrue to either party herein by de-

creeing a limited divorce since no rapprochement can

be expected.

‘As pointed out by another court, we must take into

consideration ‘the mischiefs arising from turning out

into the world, in enforced celibacy, persons who are

neither married nor unmarried.’ Burlage v. Burlage,

65 Mich. 624, 32 N.W. 866, 867. Society is not interested

in perpetuating a status out of which no good can come

and from which harm may result.

‘Upon the whole case, we think the first disposition

of the matter made by the chancellor was proper; that

an absolute divorce should be decreed to the wife. Mer-

ritt v. Merritt, supra [10 Tenn.App 369], may be re

garded as disapproved.’’

(11, 12] In every divorce action there is husband, wife

and a third party who may be variously designated as the

Public, Society, Civilization. At the counsel table repre-

senting this third party sits the Court. Where there is a

conflict between the interests of this third party and that of

either of the others the interests of this third party are par-

amount and the Court will so hold. Lingner v. Lingner,

supra.

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[13] Thus where the Court can supply the requisite per-

sonal volition for absolute divorce to a competent person

seeking a divorce from bed and board only even over the

opposition of such person, the Court can supply the requisite

- volition on behalf of a person adjudged incompetent.

There remains then the question of whether Lyda Louise

. Bell had the capacity to take the oath to her cross bill which

was necessary in order to give the Court jurisdiction of the

cause of action.

[14] An insane person can sue and be sued in his own

name if the defendant fails to object thereto. Rankin y,

Warner, 70 Tenn. 302; Cartwright v. Juvenile Court at

Nashville, 172 Tenn. 626, 628, 113 S.W.2d 754; Gibson’s

Suits in Chancery (4th Ed.) Sections 82, 105; 130 AmSt.

Rep. p. 842 and the many cases cited hereunder upon the

general rule.

[15] Although a person has been declared insane this

does not conclusively render such person incompetent as a

witness. £) C.J. 96, Witnesses, Sec. 123; 58 Am.Jur. p. 92,

Sec. 118, p. 94, Witnesses, Sec. 121; Wigmore on Evidence,

3d Ed., Vol. II, Sec. 492, p. 583.

The general rule as laid down in 58 Am. Jur. p. 92, See.

118, is as follows: °

‘118, Generally—Owing to imperfect understand-

ing of the nature of insanity, its many forms and vary-

ing effects, it was considered at common law that

every insane person was wholly and absolutely non

compos mentis and incompetent to testify. And the

statement was broadly made in a number of American

cases, most of which were decided in the first half of

the nineteenth century, that insane persons and idiots

were not competent witnesses. But in more recent

times, the courts, keeping pace with the progress of

science, have greatly relaxed the rigor of that rule and

now agree that a lunatic or a person affected with ir

sanity is competent as a witness if, at the time he is

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offered as a witness, he has sufficient understanding to

apprehend the obligation of an oath, and to be capable

of giving a correct account of the matters which he has

seen or heard in reference to the questions at issue.

Otherwise, he is not competent. In other words, a

lunatic, from the condition of his mind, may not be a

competent witness, but his incompetency on that

ground, the same as want of capacity from infancy or

other cause, must be determined by the court.’’ ,

This rule is not changed by the fact that such a person

has been adjudged incompetent and confined in an institu-

tion for the insane. 58 Am.Jur. Sec. 121, p. 94.

In Wigmore on Evidence, 3d Ed. Vol. 2, page 585, in re-

ferring to this principle it is said:

‘This broad, rational principle,—that the derange-

ment or defect, in order to disqualify, must be such as

substantially negatives trustworthiness upon the spe-

cific subject of the testimony. (Italicized in Wigmore)

—is now practically everywhere accepted.’’

The decree in the divorce case is valid upon its face in

every respect. It shows that C. A. Bell testified in person

and introduced two witnesses; it shows that Lyda Louise

Bell testified in person and introduced three witnesses. It

shows that both parties were represented by competent

counsel, and that the cause was hard fought throughout.

[16] The record as herein above quoted does show upon

a reasonable construction that Lyda Louise Bell had been

adjudged incompetent, but that she remained in the Western

State Hospital for a very short period of time. The judge

trying the divorce case had before him for consideration

the appearance, conduct and manner of testifying of Lyda

Louise Bell. He was aided in protecting her and her rights

by competent counsel for her. It must be presumed that he

reached the conclusion that she had the necessary capacity

to testify and to take the oath in her cross bill. It must be

further presumed that he found she had the requisite per-

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sonal volition to seek a divorce or separation in accordance

with the statutes providing for the same.

No matter how great the mental derangement of a per-

son may be that person has some volition. They sit or

stand, they move or remain motionless; they eat certain

things, and refuse to eat others, and according to the degree

of disability make many choices and exercise many other

acts of volition. The reasoning in many of the cases laying

down the majority rule is that the injured party in a divorce

action always had the right to forgive and forget, that be-

cause of religious belief such persons may not wish a divorce

under any circumstances; that if an insane person is

gyanted a divorce such person does not have the mental

capacity to condone the acts of the offender. In reply to

this it may be said that many persons entirely competent,

who have the volition to obtain a divorce at the time it is

obtained, at a later date sincerely regret the exercise of that

volition and the obtaining of the divorce,

[17] The fact that a person adjudged incompetent sues

for divorce in his own name, when his adjudication of in-

competency is disclosed to the court and no objection to

his so maintaining the action is raised, does not render the

divorce granted under these circumstances void ab initio.

[18] The question of such person’s posession of the req-

uisite volition to seek a divorce is a fact to be found by the

trial court just as is any other. The question of such per

son’s possession of the capacity to take the required stau-

utory oath is also a fact to be found by the trial court just

as is any other.

(2

. In the case at bar these questions were before the court

and in rendering the decree of divorce, it mu8t be presumed

that he found Lyda Louise Bell possessed of both the requi-

site personal volition to seek a divorce and the capacity to

take the prescribed statutory oath.

In reaching this conclusion the social implications and

the opportunities for fraud upon a trial court are realized.

—

fe

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“ing civilization, than to conclude that the lack of such voli-

tion and capacity is conclusively presumed as a matter of

- law. , ee

"Let the decree of the Chancellor be affirmed and the

costs of this appeal adjudged against the plaintiff-in-error

and the surety on her bond. ;

On Petition to Rehear

~ In complainant in error’s’ petition to rehear there is

called in question the constitutionality of Section 8445 of

Williams Code of 1934, This Section of the Code is as fol-

lows:

“8445 4220 (2467). Relief by annulling marriage or

decreeing separation or other decree.—But if the court

be of the opinion that the complainant is entitled to re-

lief, it may be granted, according to the prayer of the bill,

by annulling the marriage, or by ordering a separation,

perpetual or temporary, or such other decree as the

nature and circumstances of the case require. ’’

The contention is made that it violates the 14th Amend-

ment of the Constitution of the United States. This Amend-

ment is as follows:

“Section 1. All persons born or naturalizezd in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”?

“es een

18-a

The clause relied upon is:

‘*No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law’’.

[19] Divorce is not a privilege or immunity of citizen.

ship, either state or federal. Ferry v. Spokane P. & §S. R.

Co., 258 U.S. 314, 42 S.Ct. 358, 66 L. Ed. 635, 20 A.L.R. 1326,

[20,21] No person has a right to a divorce except as

that right is granted by statute. When Lyda Louise Bell

sought a limited divorce she availed herself of a privilege

granted by the statutes of the State of Tennessee, and in

accepting this privilege she did so subject to all of the re-

strictions and limitations placed around it by the Statutes

of the State, one of which was Section 8445 of Williams’

Code 1934, supra.

[22] Compiainant in error’s argument amounts to

insisting that Lyda Louise Bell had sufficient mentality to

know that she did not want an absolute divorce; and that

she had sufficient volition to seek provision for her sup-

port. If she had sufficient mentality to know that she did

not want an absolute divorce, and sufficient volition to

seek provision for her support, then she had sufficient men-

t:lity to take the oath to her cross bill, and sufficient voli- —

tion to seek the divorce.

[23] Complainant in error insists that the cross-defend-

ant in the divorce case in the Circuit Court objected in his

answer to the maintenance in her own name of the divorce

action by Lyda Louise Bell. This is not a correct interpre-

tation of the answer. An examination of it discloses that

the cross-complainant never questioned the right of Lyda

Louise Bell to maintain such an action in her own name.

This answer only objected to the Cireuit Court granting

her the relief of a divorce from bed and board.

The petition for rehearing is denied.

Uiiice - 4 9

FILw

AUG 2 5 1g

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1955,

No, 283.

ADELAIDE TURNER, Guardian of LYDA LOUISE BELL,

Petitioner,

VS.

THERON 0. BELL et al.,

Respondents,

On Petition for a Writ of Certiorarl to the

Supreme Court of Tennessee.

BRIEF

For Respondents R. G. Gill, Trustee, and Provident

Mutual Life Insurance Company of Philadelphia

in Opposition.

COOPER TURNER, JR.,

Union Planters Bank Building,

Memphis, Tennessee,

Attorney for Respondents

R. G. Gill, Trustee, and

Provident Mutual Life

Insurance Company of

Philadelphia.

Of Counsel:

THOMAS R. PRICE, ip

Memphis, Tennessee,

CANADA, RUSSELL, TURNER & ALEXANDER,

Memphis, Tennessee.

Sr. Louis Law Paintine Co., 415 North Bighth Street. CEntral 1-4477.

Page

IE ia kakcd conn’ 2046 RAS RMR e CURR ID 1

ee Or CO CNR. «vt nas cudddseuabisemnwdecieus 2

PE Sater ces chavbectisesavbhchescautéec thunen 3

Assuming a federal question, it was not timely

SO! SS errs eee ee ee rege 3

Assuming both that a federal question exists and

was timely raised, the decision sought to be re-

versed rests upon non-federal grounds........... 3

No federal question exists................00.e00es 4

ED 555 64d acc kakuseua bade (0st UaReseeeees 6

Cases Cited.

Barrington v. Barrington, 206 Ala. 192, 89 So. 512,

DE Mik a On ve wE RT SKANRRR DAT SReuSeuabe wre ibces 5

Cleveland v. U. S., 329 U. S. 14, 67 S. Ct. 13, 91

SiC Als aA 6. 0bKS aso by Lab eek Se a Do eae 4

Connor v. Elliot, 18 How. 591, 15 L. Ed. 497.......... 4-5

Edelman v. People of State of California, 344 U. S. 357,

ee Ne ey OE. BA a UE hk bake nchaccunecteitace 3

Ex Parte Kinney, Fed. Cas. No. 7825, 3 Hughes 9,

3 Va. Law. J. 370, 7 Reporter 712................. 4

Ferry v. Spokane P. & S. R. Co., 258 U. S. 314, 42

a abe Sy Oe Os Ms GU iad vic kpindasss ciuboee ts 4

Hensley v. Hensley, 286 Ky. 378, 151 S. W. 2d 69..... 5

Lingner v. Lingner, 165 Tenn. 525, 56 S. W. 24 749.. 5

Maclay v. Maclay, 147 Fla. 77, 2 So. 2d 361.......... 5

Steinbridge v. State of Georgia, 343 U. S. 541, 72 S. Ct.

A Sis: Wc REG ss eneee head ae i chbb dic anene 4

Statutes.

Tennessee Statute: Williams’ Tennessee Code, Section

-—

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1955.

ADELAIDE TURNER, Guardian of LYDA LOUISE BELL,

Petitioner,

VS.

THERON 0. BELL et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Tennessee.

BRIEF

For Respondents R. G. Gill, Trustee, and Provident

Mutual Life Insurance Company of Philadelphia

in Opposition.

JURISDICTION.

Petitioner attempts to invoke the jurisdiction of this

Court to review a judgment of the Supreme Court of Ten-

nessee dealing with the divorce statutes of Tennessee by

stating that the Fourteenth Amendment to the United

States Constitution is involved, and further, that this ques-

tion was timely raised.

We submit that this so-called Federal question was not

timely raised by petitioner, and further, that the Four-

teenth Amendment has no application whatseever to the

facts of this case. It necessarily follows that jurisdiction

is lacking.

|

to

STATEMENT OF THE CASE.

Petitioner’s statement of the case is adequate, but should

be supplemented in several particulars.

In her cross-bill, Lyda Louise Bell also included a prayer

for other and further relief to which she might be entitled,

which appeared after her prayer for a bed and board

divorce.

In addition, petitioner states that the absolute divorce

was granted over the objection of Lyda Louise Bell. How-

ever, nothing can be found in the divorce proceedings ree-

ord to sustain this claim. No exception to or appeal from

the decree of absolute divorce was taken, and, in addition,

certain other proceedings were instituted by Lyda Louise

Bell after entry of the decree of absolute divorce in re

liance upon and pursuant to the decree now complained of.

It should be further pointed out that in addition Lyda

Louise Bell received as alimony all the real estate owned

by her husband at that time.

Petitioner has failed to point out that the present suit

was filed on September 15, 1953, approximately twenty |

years after entry of the divorce decree complained of.

The respondent Provident Mutual Life Insurance Com-

pany of Philadelphia is the holder of certain indebtedness

owed it by the deceased husband and his second wife,

which is secured by a Trust Deed on property owned by

the husband and the second wife, under which the re

spondent R. G. Gill is named Trustee. These respondents

relied upon the 1933 divorce decree and are parties to the

suit, because petitioner insists that the claim of Lyda

Louise Bell is paramount to said Trust Deed.

Assuming a Federal Question, It Was Not Timely Raised.

It is quite obvious from an examination of the record

that petitioner attempts to raise a Federal question for

the first time in this Court. The case was argued in the

Chancery Court of Shelby County, Tennessee, and no Fed-

eral question was raised. Petitioner then appealed to the

Supreme Court of Tennessee. No Federal question was

there raised in petitioner’s brief, assignment of errors or

argument before that Court. The Court’s opinion rests

purely and solely upon Tennessee Law. Petitioner then

filed a petition to rehear in the Supreme Court of Ten-

nessee, attempting to then raise a Federal question. The

Supreme Court of Tennessee denied the petition to rehear,

thereby affirming its original opinion.

It is therefore evident that the Tennessee Courts have

not been presented with any Federal question to decide,

and that the opinion herein is founded solely upon Tennes-

see Law.

That being so, a Federal question cannot now be raised

to invoke the jurisdiction of this Court. Edelman v. Peo-

ple of State of California, 344 U. S. 357, 73 S. Ct. 293, 97

L, Ed. 387.

Il.

Assuming Both That a Federal Question Exists and Was

Timely Raised, the Decision Sought to Be Re-

versed Rests Upon Non-Federal Grounds.

The opinion of the Supreme Court of Tennessee is

founded solely upon Tennessee Law. In denying the peti-

tion to rehear, that Court did not modify or change its

ser Pe

original opinion; it merely denied the petition to rehear,

thereby affirming its original opinion in its entirety.

It appears clear, therefore, that the judgment sought to

be reviewed not only might but does rest on non-federal

grounds.

Under such circumstances this Court will not take juris.

diction to review. Steinbridge v. State of Georgia, 343

U. S. 541, 72 S. Ct. 834, 96 L. Ed. 1130.

Il.

No Federal Question Exists.

Petitioner takes the position that Section 8445 of Wil-

liams Tennessee Code violates the privileges and immu-

nities portion and the due process portion of the Four-

teenth Amendment to the United States Constitution, and

this is said to be true because that Code Section author-

izes the trial Court to grant an absolute divorce to a liti-

gant in the Court’s discretion, aithough the litigant has

prayed only for a bed and board divorce.

There is no merit in or support for that proposition.

Petitioner concedes as much on page eleven of the peti-

tion:

“While the authority cited deals with dower rather

than divorce, we can agree to the proposition stated,

that divorce is not a privilege or immunity of citizen-

ship.”

Marriage and divorce are privileges solely inherent in

state citizenship, and are not privileges and immunities

within the meaning of the Fourteenth Amendment. Ex

Parte Kinney, Fed. Cas. No. 7825, 3 Hughes 9, 3 Va. Law

J. 370, 7 Reporter 712; Cleveland v. U. S., 329 U.S. 14, @

S. Ct. 13, 91 L. Ed. 12; Ferry v. Spokane P. & S. R. Co,

258 U.S. 314, 42 S. Ct. 358, 66 L. Ed. 635; Connor v. Elliot,

et.

18 How. 591, 15 L. Ed. 497; Hensley v. Hensley, 286 Ky.

378, 151 S. W. 2d 69; Maclay v. Maclay, 147 Fla. 77, 2 So.

2d 361; Barrington v. Barrington, 206 Ala. 192, 89 So. 512,

17 A. L. R. 789.

Clearly the privileges and immunities secured by the

Fourteenth Amendment are not here involved. Therefore,

no Federal question is presented under that portion of the

Fourteenth Amendment.

Petitioner has also invoked that portion of the Four-

teenth Amendment which provides that no state shall de-

prive any person of life, liberty or property without due

process of law in an attempt to invoke the jurisdiction of

this Court.

This contention is likewise without merit. No one has

been deprived of life, liberty or property without due proc-

ess of law. The statute in question is applicable to all

titizens of Tennessee, regardless of race, religion or sex.

It is not unreasonable, unjust, capricious or arbitrary. It

deals solely with the social and economic status of citizens

of Tennessee.

The reason for its enactment is perhaps best stated by

the late Chief Justice Green of the Supreme Court of Ten-

nessee in the case of Lingner v. Lingner, 165 Tenn. 525,

56S. W. 2d 749, at pages 533, 534 of the Tennessee Reports:

“** * * In the case before us, however, the parties are

mature. The chancellor, who had these people before

him, together with their kinsfolk, has found that their

mutual feelings have reached such a degree of hos-

tility as to make a reconciliation impossible; that a

limited divorce would only prolong a bad situation

that society had no interest in preserving. We agree

with the chancellor. This is not a doubtful case such

as Rutledge v. Rutledge, supra, and those that follow

it. The wishes of neither party in a divorce case con-

line Mens

trol the actions of the court. The court, of course,

gravely considers the desires of the party wronged

but the court reserves the right to determine for it-

self what is best for that party. We can see no good

that would accrue to either party herein by decreeing

a limited divorce since no rapprochement can be ex-

pected.

‘*As pointed out by another court, we must take into

consideration ‘the mischiefs arising from turning out

into the world, in enforced celibacy, persons who are

neither married nor unmarried.’ Burlage v. Burlage,

65 Mich. 624, 32 N. W. 866. Society is not interested

in perpetuating a status out of which no good can come

and from which harm may result.’’

By no stretch of the imagination can this statute be said

to violate the due process clause of the Fourteenth Amend-

ment, and consequently no Federal question is raised

thereby.

From the foregoing, it is clear that no Federal question

is involved, and that petitioner is in reality asking this

Court to legislate concerning the divorce laws of the State

of Tennessee.

CONCLUSION.

For the foregoing reasons, it is respectfully submitted

that the petition for certiorari should be dismissed.

COOPER TURNER, JR.,

Attorney for Respondents R. G. Gill,

Trustee, and Provident Mutual Life

Insurance Company of Philadelphia

Of Counsel:

THOMAS R. PRICE,

Memphis, Tennessee,

CANADA, RUSSELL, TURNER & ALEXANDER,

Memphis, Tennessee.

Ss.

)

a