Title 21 Proceedings In Chancery
Chapter 1 Bills In Chancery
Part 1 General Provisions
§ 21-1-102. Oaths to bills.
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Bills required to be under oath may be sworn to in the state before any judge, clerk of a court, general sessions judge or notary public, whose attestation shall be deemed evidence of the fact. Bills required to be under oath may be sworn to out of the state, before a notary public, or a commissioner for this state, whose attestation shall be accompanied by the notary public's or commissioner's seal of office, or before a judge of the state, whose official character shall be attested by the clerk of the court in which the judge presides.
§ 21-1-103. Right to trial by jury.
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Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases involving complicated accounting, as to such accounting and those elsewhere excepted by law or by this code, and all the issues of fact in any proper cases, shall be submitted to one (1) jury.
§ 21-1-104. Appointment of referees and commissioners.
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The chancellors, in vacation as well as in term, have the power to appoint referees or commissioners to take accounts, where the clerk and master is interested or is unable to attend, or in other cases where it is deemed expedient.
§ 21-1-106. Regulation of master's proceedings.
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The chancellor may also, in vacation as well as in term, but if in vacation, on reasonable notice to the opposite party, regulate and control all proceedings in the master's office, and, for good cause shown, may set aside, modify or alter any such proceedings, upon such terms as appear equitable.
§ 21-1-107. Incompetency of chancellor on vacation matters.
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In all cases in which the chancellor of the division in which any cause is pending is incompetent, the chancellor of any adjoining division has the same power, in vacation, to make all such orders and decrees, issue all such process, and dissolve, restore or modify injunctions, to appoint receivers, and do and perform any other duty that may be performed by the chancellor of the division, as provided by this part, but notice of the application shall be the same as to time and place as is prescribed for taking depositions. The party making the application shall state, by affidavit, that the chancellor is incompetent.
Part 2 Process
§ 21-1-201. Copy of bill on demand.
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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.
§ 21-1-202. Names included in process.
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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.
§ 21-1-203. Personal service dispensed with.
- (a)
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.
- (b)
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.
§ 21-1-204. Service by publication.
- (a)
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.
- (b)
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.
- (c)
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.
- (d)
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.
- (e)
Evidence of the publication in pursuance of the order may be by affidavit of the printer or actual production of the newspaper in court.
§ 21-1-205. Actual notice to nonresidents.
- (a)
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.
- (b)
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.
§ 21-1-206. Memorandum book for process.
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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.
Part 3 Contempt on Failure to Appear
§ 21-1-302. Attachments.
- (a)
The only process of contempt is an attachment, which is issued upon order of the chancellor at the instance of the complainant, upon the return of the subpoena duly served by the proper officer, or affidavit by the officer of such service.
- (b)
The attachment may be made returnable to any rule day in term or vacation, and upon its service, bail may be taken for the appearance of the defendant at the time fixed in the attachment.
- (c)
If the defendant fails to appear in compliance with the terms of the defendant's bail, a second attachment issues, upon which no bail can be taken, and the penalty of the bail bond may be decreed forfeited and collected by execution.
- (d)
After an attachment for contempt, no plea or demurrer shall be received, unless by order of the court upon motion.
§ 21-1-303. Refusal to answer fully.
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A defendant who appears and refuses to answer fully shall be committed to jail, there to remain until the defendant is purged of the contempt and complies with the requirements of the law by filing a full and complete answer.
§ 21-1-304. Procedure after commitment.
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If the defendant is committed for contempt, the complainant may proceed with the action as if the bill had been taken for confessed, the allegations being taken as in all respects true. But, in that case, all further proceedings for the contempt shall cease, and the court, or the judge of the court, may discharge the defendant from custody.
§ 21-1-305. Extension of time to answer.
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Nothing in this part shall deprive the clerk and master, or the court, of the power of granting to the defendant, upon good cause shown, further time within which to file answer.
Part 4 Decrees Pro Confesso
§ 21-1-402. Time decree becomes absolute without attachment.
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In all other cases, a decree against a defendant without personal service of process who does not appear to defend is not absolute for three (3) years from the decree, unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fails to come forward and make defense within six (6) months after service.
§ 21-1-403. Death of defendant after decree.
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The death of the defendant proceeded against without personal service, whether the death occurs before or after the filing of the bill, does not render the proceedings void, but the defendant's heirs or representatives, as the case may be, have the right, within three (3) years from the rendition of the final decree, to make themselves parties by petition, verified by affidavit, showing merits and contest the complainant's bill.
§ 21-1-404. Time defense allowed.
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The original defendant, or the defendant's heir, representative or assignee claiming under the defendant by virtue of any act done before the commencement of the suit, may, within six (6) months after service of a copy of the decree, or within three (3) years after the decree, be admitted to answer the bill, upon petition showing merits, and giving security for the payment of costs, and witnesses on both sides may be examined, and such other proceedings may be had on the suit as if the cause were then newly begun.
§ 21-1-405. Security from complainant on decree.
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It is no objection to the execution of a decree rendered against a defendant that it was founded on a bill taken for confessed, without personal service; but the court may require the complainant to give sufficient security, in such sum as the court deems proper, to abide by and perform such order touching the restitution of property, or repayment of money, as the court may and should make, upon the defendant subsequently setting aside the decree, and successfully resisting the complainant's suit.
Part 5 Transfer of Cases
§ 21-1-501. Incompetency of judge.
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In all cases in equity, if the judge is a party, is directly interested in the suit, is connected by blood or affinity within the prohibited degrees with any person so interested or is incompetent as having been of counsel, the venue may be changed to the nearest chancery court, as the case may be, not liable to the like exception, as of course, at the instance of either party, without costs, unless the term at which the application is made, being a trial term, the cause shall be heard and disposed of by a judge not liable to the like exception, sitting specially or by interchange.
§ 21-1-502. Suits related to actions in other courts.
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The chancery court in which any suit or proceeding is brought in which the complainant seeks relief predicated upon, closely related to or growing out of matters or things theretofore adjudicated by final judgment or decree of the circuit or any other court, whether or not the circuit or other court retained jurisdiction of the cause for the purpose of enforcing or modifying the final judgment or decree, in the sound discretion of the judge or chancellor of the chancery court, either sua sponte, or upon motion of any defendant, may transfer the suit or proceeding to the court in which such matters or things were theretofore finally adjudicated; provided, that the circuit or other court shall have jurisdiction of the suit or proceeding concurrent with the chancery court; and provided further, that it shall be made to appear to the chancery court that the transfer of the suit or proceeding to the circuit or other court will not cause unnecessary hardship or inconvenience to the parties to the suit or proceeding, their counsel or witnesses, or unreasonable delay in the final hearing or disposition of the suit or proceeding.
Part 6 Answers
§ 21-1-601. Oath to answer.
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When an answer is required to be sworn to, the oath may be administered as in case of the bill of complainant. The power of the court or clerk and master to appoint a special commissioner to administer the oath, either in this or any other state, is not affected by this section.
Part 7 Rules and Orders of Clerk and Master
§ 21-1-701. Powers of clerk and master.
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The clerk and master may, at the clerk and master's office:
- (1)
Receive and enter on the rules the suggestion and proof of a party's death, and order and issue the necessary process to revive;
- (2)
Make orders for publication against defendants in cases in which publication is allowed in lieu of personal service;
- (3)
Take bills for confessed, and set aside the orders pro confesso, upon good cause shown and the filing of a sufficient answer;
- (4)
Appoint guardians ad litem for infants, upon its being made to appear, by affidavit, that they have no general guardian;
- (5)
Make orders for the taking of depositions, where those orders are necessary; and
- (6)
Open causes for proof, on good cause shown, after they have been set for hearing, in the same way the chancellor might do.
§ 21-1-702. Entry of proceedings by clerk and master.
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Rules, notices, orders and other proceedings in a cause, made with or by the clerk and master, shall be entered by the clerk and master in a well-bound book, to be kept for that purpose, each entry to be made in order and with the correct dates attached.
§ 21-1-704. Insertion in rule docket.
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All rules or orders taken at any one (1) court shall be inserted in the rule docket by the first rule day that is more than twenty (20) days after the term.
§ 21-1-705. Rule days.
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Each day of a regular, special or adjourned term of the court of chancery, and also the first and third Mondays of every month in vacation, is a rule day.
§ 21-1-706. Notice of proceedings by clerk.
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The clerk and master shall give to the opposite party, or the opposite party's solicitor, notice of any rule, order or other proceeding taken at the clerk and master's office, affecting the party.
§ 21-1-707. Notice of alteration of rules and orders.
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The clerk and master shall not set aside, modify or alter any rule or order of the chancellor, where that power is given by this code; or any rule or order of the clerk and master's own at office without reasonable notice to the opposite party or the opposite party's solicitor.
Part 8 Decrees and Execution
§ 21-1-801. Sequestration.
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If the court see proper in the first instance, or if upon issuance of the attachment, the delinquent cannot be found, a writ of sequestration may issue against the estate of the delinquent, to compel obedience to the decree.
§ 21-1-802. Mesne and final process — Common law writs.
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Courts of chancery are further authorized to issue such process, mesne and final, as has been used in the chancery courts; and all writs for the collection of money, or to obtain the possession of real or personal property, in use in the common law courts, may be adapted to the execution of decrees in the courts of chancery.
§ 21-1-803. Foreclosure sale.
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Where, upon the foreclosure of a mortgage or deed of trust, or in any case, the specified land to be sold is mentioned in the decree, the court, upon the application of the complainant, may order that:
- (1)
The property be sold on a credit of not less than six (6) months nor more than two (2) years;
- (2)
When the sale is made, reported and confirmed, no right of redemption or repurchase shall exist in the debtor or the debtor's creditors, but that the purchaser's title shall be absolute; and
- (3)
The surplus of the purchase money, or the bonds or notes taken for the purchase money, over and above what is necessary to pay the complainant's debt, be paid to the debtor or the debtor's other creditors entitled to the payment.
§ 21-1-805. Issuance of attachment.
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An attachment issues by order of the court upon the officer's return or affidavit of the service of a copy of the decree ten (10) days beforehand, and that the party has failed or refused to comply with the terms of the order.
§ 21-1-806. Attachment without service of decree.
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If the defendant in execution keeps out of the way or absconds, so that a copy of the decree cannot be served upon the defendant, or if the defendant evades receiving the decree, an affidavit of that fact, and that a copy of the decree was tendered the defendant, or left at the defendant's last place of abode, shall authorize the issuance of the attachment without actual service of the copy.
§ 21-1-808. Habeas corpus on purge of contempt.
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The court, or a judge of the court in vacation, may, in such case, grant a habeas corpus, and discharge the party, if the party purges the contempt, upon such conditions in respect to the party's compliance with the decree as the judge thinks proper.
§ 21-1-809. Hearing on habeas corpus.
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The adverse party, the adverse party's agent or attorney is entitled to reasonable notice of the hearing upon the writ of habeas corpus granted pursuant to § 21-1-808, if in the state, and may interrogate the party in contempt upon the party in contempt's oath, and controvert the truth of the party in contempt's statements by other proof.
§ 21-1-810. Reinstatement of remanded cases.
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In all cases remanded by the supreme court or court of appeals to any court for the execution of an order of reference, order of sale or for other proceedings directed in the decree of the appellate court or in the decree of the lower courts as affirmed or modified by the appellate court, the cases shall be deemed reinstated in the lower court from the time of filing with the clerk and master or clerk of the court a certified copy of the decree or mandate of the appellate court; and thereafter such cases may be proceeded in, in accordance with the decree of the appellate court, without any action of the lower court on the case. It shall not be necessary for the decree or mandate of the appellate court to be spread of record, in the lower court, by direction of the lower court, before the clerk and master, clerk of the court, or the parties may proceed in such case in accordance with the decree or mandate of the appellate court.
§ 21-1-811. Notice of appellate decree.
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Upon the receipt of any certified copy of decree, or mandate of any appellate court, the clerk and master or clerk of the lower court, shall file the decree or mandate, copy it upon the rule docket or minute book, if the court so directs, and notify the attorney of record in the case of the filing of the decree or mandate. The clerk and master or clerk of the lower court shall receive the same compensation for these services as now allowed by law for similar services; provided, that it shall not be necessary for the clerk of the lower court to send the notice if a procedure has been established whereby the clerk of the appellate court is required to send notice.
2024 Tennessee Code Unannotated