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[6] The result is that the original, amended, and supplemental bills must be dismissed as to the complainants still remaining before the court. The dismissal of the said bills will have no effect upon the contempt proceedings. It was the duty of defendants to obey the injunction, and their failure to do so was a contempt of court for which they should be punished. We are of the opinion, however, that the imprisonment should be remitted, because the injunction order was such as would have been superseded, if time

by this order the chancellor decided on the application for a temporary injunction the merits of the cause in advance of a hearing

thereon.

of men and boys to gather on the streets and go in and out of these resorts, the use of profane and vulgar language in the streets by men who gather there, the traipsing of the women, denizens of such houses, from one house to the other, or along the street, in pursuit of a man or men, the occasional exposure of person on the part of some woman in a house or houses not identified or distinguished from the mass of houses; in short, a jumbled aggregation of general evidence to no house in particular, but to all of the houses as an assemblage of illegally application had been made therefor, since resorts. Relief in such a case must necessarily rest upon the postulate that the chancery court has power to break up and destroy such a nest of vice, although it is unable to see from the evidence from what special house the injury proceeded which is the necessary prerequisite to give the court jurisdiction. The task is too much for the chancery court. It cannot accomplish it. On the other hand, it can be accomplished by the criminal court. There no special damage to private persons need be proven. The crime of conducting a disorderly house, or of acting as inmates of one, or of renting a house to be used for such purpose, is all that need be proven. All persons so offending can be punished, not merely by a small fine and short imprisonment, but by heavy fines, and imprisonment for any term less than 12 months, and the houses can be broken up.

[5] We have proceeded thus far without mentioning another objection to complainants' claim to relief in the chancery court, if the other objections mentioned were out of the way. That is laches. This "red light district" has been in operation in Chattanooga 25 or 26 years, according to the witnesses for complainants themselves; some witnesses say, from 30 to 40 years. Parties who apply to a court of chancery for injunctive relief must apply promptly, on the penalty of a refusal to entertain the bill because of laches. In Caldwell v. Knott, 10 Yerg. 210, 212, where the nuisance complained of was a milldam, the court held that a delay of 10 years, without more, was too much, and the court referred with approval to the case of Weller v. Smeaton, 1 Cox, 103, and Reid v. Gifford, 6 Johns. Ch. (N. Y.) 19, wherein it was held that 3 years' delay was too long. These cases were referred to and approved in the case of Madison v. Copper Co., 113 Tenn. 331, 351-355, 83 S. W. 658, in which many other cases were cited showing that even a much shorter time would serve to bar relief in equity under peculiar facts; and it was said in that case that, although the defense of laches had not been raised in the lower court by the parties, this court could itself raise it when it appeared on the record. In the present case there was a delay of, not 3 years, or of 10 years merely, but for more than a quarter of a century.

The cause will be remanded to the chan

cery court of Hamilton county for the enforcement of the judgment for contempt, as herein modified, and with directions to dismiss the bills when these matters are finally

disposed of.

The defendants found guilty under the respective contempt proceedings will pay the costs of these proceedings in the chancery court in so far as they are unadjudged. Defendants to the respective contempt proceedings in this court will pay the costs of this court and the Court of Civil Appeals.

the record will pay all of the unadjudged The complainants still remaining such in costs of the chancery court. The five active complainants, who have prosecuted the original cause in this court and in the Court of Civil Appeals, will pay the costs of said original case in both courts.

It follows that the decrees of the Court of

Civil Appeals and of the chancellor in the main case are reversed, while the judgments of both of these courts in respect of the contempt proceedings are modified and affirmed.

KING et al. v. COX et al. (Supreme Court of Tennessee. Nov. 23, 1912.) 1. TRIAL (§ 177*) DIRECTED VERDICT-EFFECT OF MOTION-WAIVER OF JURY TRIAL.

peremptory instructions will not operate as an
Concurring motions by both parties for
agreement that the controversy shall be de-
termined by the trial judge, so as to take the
case from the jury.

Dig. 8 400; Dec. Dig. § 177.*]
[Ed. Note.-For other cases, see Trial, Cent.

2. TRIAL ( 176*)-DIRECTED VERDICT

EFFECT OF MOTION-WAIVER OF OBJECTION TO EVIDENCE.

By moving for peremptory instructions a party does not waive objection to the rejection or admission of evidence, as he does by demurring to the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 399; Dec. Dig. § 176.*]

3. TRIAL (§ 155*)-DEMURRER TO EVIDENCE.

A demurrer to the evidence withdraws the case from the jury and submits it to the court, to apply the law to the admitted facts; and where the evidence is written, or, though parol,

is certain, the other party must join, or waive | orari. such evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 352, 353; Dec. Dig. § 155.*] 4. APPEAL AND ERROR (§ 548*)-BILL OF ExCEPTIONS-DEMURRER TO EVIDENCE.

A demurrer to the evidence is complete in itself, and need not be preserved by bill of exceptions to review a ruling thereon.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. 8 548.*]

5. TRIAL (§ 156*)—DEMURRER TO EVIDENCECONFLICTING EVIDENCE.

case.

That evidence is conflicting does not prevent the case from being submitted on demurrer to the evidence; all reasonable inference therefrom being drawn in plaintiff's favor in such [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 354-356; Dec. Dig. § 156.*] 6. TRIAL (§§ 156, 178*)—DIRECTION OF VERDICT-ASSESSMENT OF DAMAGES.

Upon sustaining a motion for peremptory instructions, the case may be remanded to the jury for assessment of damages, while, on demurrer to the evidence, all of the evidence on damages must be found in the demurrer, and the amount fixed by the court.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 354-356, 401-403; Dec. Dig. §§ 156, 178.*1

7. INJUNCTION (§ 241*) BOND.

ENFORCEMENT OF

Under Shannon's Code, § 6259, providing that the damages resulting from an injunction may be ascertained by the court upon reference to the master, or upon an issue of fact tried as other issues of fact, if the parties elect to have a jury, defendant either may have reference to the master for assessment of damages, or bring independent suit on the injunction bond.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 544-552; Dec. Dig. § 241.*] 8. EVIDENCE (§ 162*)-BEST EVIDENCE.

The fact of a dissolution of an injunction must be shown in an action on an injunction bond by the best evidence, which is the record of the injunction suit; Shannon's Code, § 5579, providing that a judicial record is proved by production of the original, or by copy thereof certified by the clerk.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 536-545; Dec. Dig. § 162.*] 9. EVIDENCE (§ 366*)-DOCUMENTS

RECORD.

ENTIRE

In order to prove the dissolution of an injunction in an action on an injunction bond by a copy of the record in the injunction suit, a copy of the whole record must be produced. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. § 366.*] 10. EVIDENCE (§ 183*). BEST EVIDENCECOPIES OF JUDICIAL RECORD.

In an action on an injunction bond, in which it is sought to prove dissolution by copies of the pleadings, a writ, and bond, evidence held not to show that the pleadings, writ, and bond were lost, so as to admit in evidence certified copies thereof.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*]

Reversed and remanded for further

proceedings.

Harr & Burrow and A. C. Keebler, all of Bristol, and C. A. Brown and H. H. Smith, both of Blountville, for plaintiffs. Mullenix & St. John, of Bristol, for defendants.

NEIL, J. The present action was brought in the circuit court of Sullivan county on an injunction bond, which the plaintiffs in error had executed in a case formerly brought by them in the chancery court of that county. Numerous objections to evidence were offered in the trial court by the plaintiff in error, and overruled by the trial judge. Both sides moved for peremptory instructions. The court thereupon overruled the motion of plaintiffs in error, but sustained that of defendants in error, and directed a verdict in favor of the defendants in error for the sum of $1,460. From this judgment, after a motion for new trial had been made and overruled, an appeal was prosecuted to the Court of Civil Appeals. In that court the judgment was affirmed as to all of the defendants Both sides in error except J. F. Yoakly. filed a petition for certiorari in this court, and both were granted, and the case was set down for argument.

The Court of Civil Appeals held that, inasmuch as both parties had moved for pera mutual emptory instructions, this was agreement to take the case from the jury, and to permit it to be decided wholly by the trial judge, and that each side, by such motions, waived all objections to evidence. That court, in support of the first proposition, relied upon two cases decided by it: Railway Co. v. Crutcher, 1 Tenn. C. C. A. 231, and Aizenshtatt v. Mayor, Id. 805. For the proposition that such motions waived all objections to evidence, reliance was had upon the rule that a demurrer to the evidence has that effect, and it was held that a motion for peremptory instructions was substantially the same as a demurrer to the evidence, and therefore must operate in the same manner upon such objections.

This view lies at the threshold of the present controversy, and must be disposed of before other questions can be considered.

[1] As to the first proposition, this court has taken a different view, from the two cases cited from 1 Tenn. C. C. A., in a recent case, decided at the present term, VirginiaTennessee Hardware Co. v. Ollie Sue Hodges, 149 S. W. 1056. It was held in that case that such concurrent motions did not have the effect of an agreement by the parties that the whole controversy should be determined by the trial judge. After discussing the grounds on which this court thought the decision of the question must rest, it was said, in conclusion:

Certiorari to Court of Civil Appeals. Action by Sam. L. King and others against W. H. Cox and others. The judgment of the Court of Civil Appeals affirmed a judgment in the circuit court for plaintiffs, except as to one of them, and both parties bring certi

"We are of the opinion that, under the true practice, the motion of each party should

be treated for what it is, a matter wholly | plaintiff, and confesses its truth. This is distinct from and adverse to that of his clinched by the joinder of the plaintiff. It adversary; that neither is put in a worse is absolutely binding on the demurring party, position, so far as concerns his ultimate with all legal and reasonable inferences right of review, by his adversary's making a that may be deduced therefrom, and is equivsimilar motion; that such motion should alent to a special verdict. It withdraws the stand as if made and remaining alone, and case from the jury, and submits to the court should be disposed of on its own merits; the application of the law to the facts. that the only question submitted to the trial Where the evidence is written, and where, judge is the question of law above indicated; though parol, it is certain, the party who that as a necessary preliminary to respond-offers it must join in the demurrer, or waive ing to this question he must determine the testimony. If the plaintiff refuse to join, whether there is any substantial conflict in except in terms which the court disapproves, the evidence; that if he find such conflict, his evidence is considered as withdrawn, or undisputed evidence from which conflict- and the jury must find a verdict for the deIng inferences may reasonably be drawn, on fendant. The party who prevails on the dematerial points, he should submit the case murrer is entitled to final judgment in his to the jury; that if he is of opinion there favor. The demurrer is complete in itself, is no such conflict he should sustain the and no bill of exceptions is needed for its motion of one party or of the other, accord-preservation. Hopkins v. Railroad, 96 Tenn. ing to his view of the facts and the law; 409, 34 S. W. 1029, 32 L. R. A. 354; Sumthat the party whose motion has been over-mers v. Railroad, 96 Tenn. 459, 35 S. W. 210; ruled may have the action of the trial judge Railroad v. Brown, 96 Tenn. 559, 35 S. W. reviewed on appeal, without the necessity of asking the submission of any special ques tion or questions to the jury; that on such appeal he may attack the action of the trial judge, in overruling his motion and in sustaining that of his adversary, and may put forward his contention of the facts and assail that of his adversary; and the appellate court will for itself ascertain the facts, and will determine whether the trial judge should have sustained the one motion or the other, or should have submitted the case to the jury."

The question, then, as to whether a motion for peremptory instructions is a waiver of the right to assign errors in the appellate court on the rulings of the trial judge on points of evidence, must be determined without regard to whether both parties made motions or only one of them.

560; Thane v. Douglass, 102 Tenn. 307, 52 S. W. 155; Artenberry v. Railroad, 103 Tenn. 266, 52 S. W. 878; Barr v. Railroad, 105 Tenn. 544, 58 S. W. 849; Mitchell v. Railroad, 100 Tenn. 329, 45 S. W. 337, 40 L. R. A. 426; Manufacturing Co. v. Morris, 105 Tenn. 654, 58 S. W. 651; Coleman v. Bennett, 111 Tenn. 705, 714, 69 S. W. 734; Railroad v. Sansom, 113 Tenn. 683, 84 S. W. 615. "The office and function of a demurrer to the evidence is to test the strength of plaintiff's case upon his own testimony, and not upon the testimony of both parties, nor upon facts agreed to by both parties." Bridgeport &c. Co. v. Railroads, 103 Tenn. 490, 495, 53 S. W. 739, 740. Even if the evidence is conflicting, this does not prevent the case from being submitted under a demurrer to the evidence. "It is said, if the evidence is conflicting, only that must be looked to which is most favorable to plaintiff on demurrer to evidence. This is not a correct statement. The evidence must be looked to as a whole, and all reasonable inferences drawn from it in plaintiff's favor; but none of it must be excluded simply because unfavorable, but only if shown by other evidence to be incorrect." Corbett v. Smith, 101 Tenn. 368, 374, 47 S. W. 694, 695.

[2] The question, therefore, is reduced to the inquiry whether the making of a motion for peremptory instructions waives objections made to the rejection or admission of evidence on the part of the person making the motion. Aside from the fact of concurrent motions, it is insisted that, if either plaintiff or defendant below make such motion, he waives all such errors. The argument in support of the contention seems to be that a motion for peremptory instructions is practically identical with a demurrer to the evidence. It is held in this state, and others, that where a demurrer to the evidence is conflicting on material points, or dence is filed, this does waive such errors, regardless of whether the motion was suc cessful or unsuccessful. Southern Railway Co. v. Leinart, 107 Tenn. 635, 64 S. W. 899; Coleman v. Bennett, 111 Tenn. 705, 711, 69 S. W. 734.

[3-5] The two motions have points of similarity, but also material points of difference. In the demurrer to the evidence the defendant sets out all of the evidence ad

On a motion for peremptory instructions, no joinder is necessary. It may be made at the close of the plaintiff's evidence, or at the close of all of the evidence. If the evi

if diverse inferences as to material matters can be drawn from evidence not conflicting, the case must go to the jury, and cannot be decided by the court. The motion to instruct does not necessarily dispose of the whole case. Although there may be no conflict as to the right of action, there may be as to the amount of the recovery, and in that event the latter question will be settled by the jury. The party making the mo

man v. Railroad, 119 Tenn. 401, 104 S. W. 1088. Of course, the purpose of both methods is to expedite the trial of causes, and the rule is that a peremptory instruction, sustained in the trial court and affirmed in the appellate court, will end the case; and a peremptory instruction, offered and refused in the trial court, but adjudged good in the appellate court, will have the same effect. So on the sustainment of a demurrer to the evidence, either in the trial court or in an appellate court, the case will likewise be at an end.

dence and sign a statement thereof as under | Railroad, 117 Tenn. 98, 98 S. W. 174; Nora demurrer; but the motion is made orally on the evidence as delivered before the court. Likewise, if there be a question as to the credibility of witnesses, the case must go to the jury. While a party who files a demurrer to the evidence must sustain it at his peril, the penalty being a judgment against him if he fail, such is not the result on failure to sustain a motion for peremptory instructions. The effect simply is that the case goes to the jury for trial. The party who files a demurrer to the evidence says, in effect, by his written submission, that there is no doubt as to any of the facts, and purports to set them all out, and, if there is any apparent conflict in the evidence so set forth, this by the act itself of filing the demurrer submits the decision and determination of this question of fact to the court, for the harmonizing of all the evidence in respect thereof; while one who files a motion to instruct, although he asserts that the evidence is without conflict, yet he does so in submission to the rule of law that if there be any conflict on any material or determinative question of evidence it is the duty of the court to overrule such

motion and submit the case to the jury

When a demurrer to the evidence is filed, the case as already stated is absolutely at once withdrawn from the jury, on a joinder of the plaintiff; while on a motion to instruct the question is submitted to the court whether the case shall be withdrawn. The opinion of the court is merely invoked as to whether it is a case proper for the jury, or one for the court alone, and the motion includes in effect a request of the court for appropriate action in the event of his decision one way or the other. Under the former practice no verdict of the jury is necessary, proper, or permissible; in the latter case the jury must render a verdict, albeit under the direction of the court. The trial judge may instruct the jury of his own motion without any application by either party, and neither party can compel the other; in a demurrer to the evidence it is necessary that the defendant make the application, and when he does so the plaintiff must enter his joinder. A motion for new trial is necessary as a preliminary to test, in the appellate court, the correctness of the action of the trial judge in giving or refusing to give a peremptory instruction, and the whole matter, including the evidence, must be incorporated in a bill of exceptions. No such motion is necessary to test the disposition of a demurrer to the evidence, nor, as we have previously stated, is it necessary that a bill of exceptions should be used in connection therewith. Tyrus v. Railroad, 114 Tenn. 579, 86 S. W. 1074; Traction Co. v. Brown, 115 Tenn. 323, 89 S. W. 319: Kinney v. Railroad Co., 116 Tenn. 450, 92 S. W. 1116; Railroad v. Williford, 115

[6] The exception must be stated, however, that upon sustaining a motion for peremptory instructions there may be a remand for the assessment of damages on evidence to be heard before the jury, while in the latter all of the evidence as to damages must be found in the demurrer itself and the amount of damages fixed by the court. Authorities supra, and also Railroad V. Hayes, 117 Tenn. 680, 697, 99 S. W. 362; Railroad v. Roe, 118 Tenn. 601, 625, 626, 102 S. W. 343; Box Co. v. Greggory, 119

Tenn. 537, 105 S. W. 350.

It is perceived that, although the results

attained by the two methods are in most aspects the same, yet they have material differences in the practice and administration thereof; that the demurrer to the evidence is in the nature of a pleading, and belongs to the precedents that control that class of subjects, while the motion to instruct belongs to the class of subjects necessary to be incorporated in a bill of exceptions along with other matters not of record, and necessary to be made a part of the record in order that the action of the trial judge in respect thereof may be tested on appeal.

We perceive no reason arising out of the nature of the subjects involved why a party who asks a peremptory instruction should be held thereby to waive any error committed against him in the matter of admission or rejection of evidence. During the progress of the trial he offers evidence which he believes to be competent and this is rejected. He saves his exception to be used on appeal; in like manner when evidence is admitted over his objection. After the court, by his rulings on testimony, has eliminated all evidence he deems improper, and has thus caused to be left a residuum, one or the other of these parties desires to raise a question of law that, even on this residuum, the case is with him. When the party comes to make his motion for new trial, we can see no incompatibility in assigning as grounds both that his honor improperly granted or refused a peremptory instruction, and improperly admitted or disallowed evidence offered. The contrary view deprives a litigant of a part of his case; or,

dence, and we deem it unwise to hamper this practice with the rules which restricted that system, and made it so unwieldy in use, and so dangerous to parties who sought to employ it. Besides this, it is certainly true that no good reason, technical or otherwise, could be offered for refusing to permit a party to assign error on the refusal of the trial judge to admit competent evidence, which, because refused, could not enter at all into the motion for instructions. This being granted, it would be a useless refinement to make a distinction between evidence of that kind and evidence admitted over objection.

For the reasons stated, we are of the opinion that a party, by making a motion for peremptory instructions, does not waive any exceptions he may have reserved against the action of the trial judge in his rulings against him on questions of evidence; and that he, on his motion for new trial, may assign such errors, along with the action of the trial judge in granting to his adversary, or in refusing to himself a motion for peremptory

instructions.

penalty on him for endeavoring to shorten | upon the old system of demurring to the evithe litigation. It says to him, in effect: You must condone the errors the judge has committed against you in his rulings on the admission and rejection of evidence as the price of the privilege of making a motion for a peremptory instruction. We repeat there is no incongruity between a party insisting on having corrected errors against him of the kind just mentioned, and those committed against him in overruling his motion for peremptory instructions, and the law imposes no estoppel. It is perfectly reasonable for him to say in the appellate court that the trial judge erred in admitting or rejecting evidence, and also, in addition thereto, he erred in ruling against him the motion for peremptory instructions. There is not only no conflict between the two grounds of relief, but they are homogeneous, and both arise naturally under a bill of exceptions. The opposite view seems to be based on what we deem an imperfect analogy between the motion for peremptory instructions and the demurrer to the evidence. It does seem, we grant, inappropriate for a defendant, at the close of the plaintiff's evidence, to incorporate all of that evidence in a demurrer, admitting it all as true, along with all legitimate inferences to be drawn therefrom, and thereby compel the plaintiff to a joinder, and then, when the demurrer is overruled, to assign error on the ground that he objected to some of the evidence, and that the objection was erroneously decided against him. The answer is: After the ruling was made against you, you delib-versible error in rulings upon evidence or otherately wrote out the evidence and signed it, and said it was true. On a motion for peremptory instructions, however, not only may there be evidence wrongly admitted against the party making the motion, but he may have offered competent evidence which It is urged that the practice above indiwas refused, and this would not appear un-cated would permit counsel to experiment der the motion at all, and he would not get with the court. It is no experiment to object the benefit of it. Such a situation could not to incompetent evidence, and to the action occur under a demurrer to the evidence, be- of the trial court in excluding competent evicause, as stated, that is only offered at the dence, but a right which belongs to every close of the plaintiff's evidence, and it em- litigant. It is no experiment, when all the bodies only that evidence. It is true that, evidence is in which the court permits to go where the person who makes the motion for in, then to take the judgment of the court peremptory instructions seeks, on appeal, as to whether on uncontroverted evidence the to assign errors upon evidence admitted plaintiff is entitled to a verdict, or the deover his objection, his case is, in a general fendant, by appropriate motions made by eiway, similar to that of one who demurs, in ther or both of the parties. The practice so far as both invoke the decision of the by which a party making a motion for pertrial judge as matter of law on all of the emptory instructions is held to forfeit excepevidence introduced. tions reserved to the admission of incompetent evidence, or the exclusion of competent evidence, shortens the litigation, it is true; but it also shortens the rights of litigants.

Still, we think the rule should be different in the two cases on grounds already stated, arising out of the difference between matters based on pleadings and those falling within bills of exceptions. The difference is rested in part on a technical distinction, but the rules covering the whole subject are technical. Moreover, the practice of directing verdicts, or giving peremptory instructions to

This view was intimated in Tyrus v. Railroad, supra, wherein it was said, in substance, that on motion properly made in the court below for a peremptory instruction, and an improper refusal of it by the trial judge, this court would be enabled to dispose of the case finally, and thereby save to the parties and the state the delay and expense of an additional trial, "in the absence of any re

erwise." Perhaps the matter in quotation marks was not necessary to the decision of the case, but it clearly indicates the view this court entertained at that time of the question now before us.

On the trial of this case in the court below, many objections were offered by the defendant to evidence which were overruled by the trial judge. The only ones which we need consider, however, may be thus stated: Plaintiffs offered in the trial court certain

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