author: GREENE, Judge.

text:
    Alexander MOSCHALE and Grace L. Moschale, his wife, Plaintiffs-Respondents, v. Edwin MOCK and Mary Alice Mock, his wife, Defendants-Appellants.
    No. 11109.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 12, 1979.

      Donald E. Lamb, Centerville, for plaintiffs-respondents.
    Robert M. Ramshur,. Randall L. Head, Ironton, for defendants-appellants.
   GREENE, Judge.

This case is an action for injunction brought by plaintiffs in the circuit court of Iron County in which plaintiffs sought to restrain and enjoin defendants from permitting their livestock to run at large upon a private road used by plaintiffs for ingress and egress to their property. Plaintiffs also requested that defendants by enjoined from interfering with plaintiffs’ right to possession and use of the road, and that they be ordered to remove certain obstructions in the form of gates and fences from the road. The petition was in two counts. The first count alleged absolute ownership by plaintiffs of the road in question, while count two alleged that plaintiffs had a possessory interest, in the form of a permanent ease- ■ ment, in the private road.

After hearing the evidence, the trial court entered a judgment for plaintiffs on both counts. The court found that plaintiffs were entitled to ingress and egress to their property along the private road in question, ordered defendants to remove all gates and barriers from the road, and permanently enjoin them from allowing their livestock to run at large upon the road. Defendants appeal.

Defendants raise several points for review, which are that the trial court erred in granting judgment for plaintiffs because 1) the petition failed to state a claim upon which relief can be granted in that plaintiffs had an adequate remedy at law, 2) the petition is indefinite and the meaning thereof is unclear, 3) the judgment is void in that it fails to describe the real estate with certainty, 4) the testimony of witness Monroe Brooks, that the lands owned by plaintiffs and defendants were at one time owned by a common source, violated the best evidence rule, 5) exhibits “A” and “B” did not establish the existence of a common grantor, 6) there was no proper foundation laid for the testimony of the surveyor, Ron Murphy, and 7) the gates and barriers erected by defendants did not unreasonably interfere with plaintiffs’ use of the road, and the judgment ordering their removal was, therefore, unreasonable.

Appellate review of the trial court’s judgment in this case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court’s judgment will not be reversed unless 1) there is no substantial evidence to support it, 2) it is against the weight of the evidence, 3) it erroneously declares the law, or 4) it erroneously applies the law.

In their first point, defendants allege that Counts I and II of plaintiffs’ amended petition fail to state a claim upon which relief can be granted. Defendants contend that under either count, plaintiffs have an adequate remedy at law and that, therefore, the injunctive relief sought by plaintiffs is inappropriate. Plaintiffs’ Counts I and II seek injunctive relief under two different theories. Neither count asks the trial court for findings of fact or conclusions of law. The trial court, in rendering its judgment, made none.

Under Count I, plaintiffs alleged that they owned, in fee simple, the road in question here and that defendants were, allowing their cattle to run upon the road in violation of § 270.010, RSMo 1969. Contrary to defendants’ argument, § 270.010 does not provide an adequate remedy at law such as to bar injunctive relief in this case. Although § 270.010 does allow the recovery of damages for injuries sustained by wandering livestock, the injury suffered here by plaintiffs is not easily repairable by money damages. The injury sustained here is in the nature of a continuing trespass. For plaintiffs to bring either a suit for money damages under § 270.010 or a suit for ejectment under § 524.010 et seq., every time that defendants’ cattle interfered with plaintiffs’ use and enjoyment of the roadway, would require a multiplicity of suits and place an undue burden upon plaintiffs. In such a case, injunctive relief is a proper remedy. Schroeder v. Ziegelman, 443 S.W.2d 16, 18 (Mo.App.1969); State ex rel. Janus v. Ferriss, 344 S.W.2d 656, 660 (Mo.App.1961).

Under Count II, plaintiffs allege, in the alternative, that they own an easement of ingress and egress along the road in question here and that defendants are interfering with plaintiffs’ use and enjoyment of that easement. Injunctive relief is available to prevent interference with or infringement of rights acquired by an easement. Kelly v. Schmelz, 439 S.W.2d 211, 213 (Mo.App.1969); Kansas City Power & Light Company v. Riss, 319 S.W.2d 262, 265 (Mo.App.1958). Point one is, therefore, denied.

Defendants’ second point also alleges that plaintiffs’ amended petition fails to state a claim upon which relief can be granted in that it is indefinite and unclear. The objection that a petition wholly fails to state a cause of action may be offered at any stage of the proceeding, but, to be available after verdict, it must go to the entire sufficiency of the petition to state a cause of action and cannot avail where it states a cause of action which is merely indefinite and imperfect in some of its averments. State ex rel. Gardner v. Webber, 177 Mo.App. 60, 64, 164 S.W. 184, 186 (1914). Defendants did not challenge plaintiffs’ petition by a motion to make more definite and certain. Any indefiniteness in the amended petition was cured by the court’s verdict. Phillips v. East St. Louis & S. Ry. Co., 226 S.W. 863, 865 (Mo.1920). Point two is denied.

In their third point, defendants allege that the trial court’s judgment is void because it does not describe, with certainty, the roadway which is the subject of this litigation. Plaintiffs submitted, as evidence, two warranty deeds, exhibits A and B, which grant them the right to use the roadway here in question. The descriptions of the roadway, however, although essentially the same, are not identical. Yet, there is but one road running across defendants’ land. Since the location of the roadway was not the primary disputed matter • in this case, the trial court’s description was not required to be as definite as it might be where exact location was the ultimate issue. The descriptions contained in exhibits A and B, and adopted by the trial court, were sufficient to allow the parties to find and identify the roadway referred to in the court’s judgment. Huter v. Birk, 510 S.W.2d 177, 182-183 (Mo.1974); Allen v. Smith, 375 S.W.2d 874, 883 (Mo.App.1964). Point three is denied.

Defendants’ fourth point is divided into two parts. The first part alleges, as does point five which will also be decided here, that it was error for the trial court to admit exhibits A and B into evidence because they were offered to prove that respondents were the owners of a private roadway by expressed grant and there was no evidence of a common grantor. Defendants cite no authority, and we find none, which would require evidence of a common grantor to make an easement by express grant valid. Nor do defendants explain why they have not cited any authority. Defendants’ arguments, absent authority, are not persuasive'. Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978).

The second part of defendants’ fourth point alleges that the trial court violated the best evidence rule in allowing Monroe Brooks to testify as to the common ownership of the land now owned by defendants and plaintiffs because that information could best be established by an abstract of title, which was available to plaintiffs but not introduced. The best evidence rule does not come into play simply because a witness is testifying to facts which are also contained in a writing. It is activated when the terms of a writing are in dispute. Then, the original document is the best evidence of the terms of the writing. Yeager v. Whittels, 517 S.W.2d 457, 466 (Mo.App.1974). Brooks was not testifying as to the terms of a deed of common ownership, he was testifying as to a fact, made through personal observation, which could also be corroborated through a deed of common ownership. The best evidence rule is not applicable in this situation. Points four and five are denied.

In their sixth point, defendants allege that it was error for the trial court to allow surveyor Ron Murphy to testify that the private roadway described in Plaintiffs’ Exhibit B was the same road which war physically located on the land in question, for the reason that plaintiffs failed to introduce sufficient evidence to show that Murphy started his survey from an established government corner, and, therefore, there was no proper foundation for Murphy’s testimony.

Plaintiffs called Ron Murphy, a registered land surveyor, to testify concerning a survey which he had performed at their request. On direct examination, Murphy was asked, “Did you start from an established government corner in performing this survey?” He replied, “No, we did not. We tied to a corner on the survey which Mr. Buel Brewer had.” At this point, defendants’ attorney objected to any further testimony by Murphy on the grounds that the survey had not been shown to have started from an established government corner. The motion was sustained by the trial court. After some brief discussion between the attorneys and' the trial judge, Murphy was excused and Buel Brewer was called to the stand.

Brewer was also a registered land survey- or. He had made a survey, which Murphy tied into, for the former owners of the land now owned by defendants. While testifying about his survey, Brewer was interrupted by defendants’ attorney. The following exchange ensued.

“MR. RAMSHUR: Judge, I would like to make an objection at this point. May I ask a question for the purpose of that objection?
THE COURT: Sure.
MR. RAMSHUR: Did you tie the survey, of what you have been testifying here, into an original government corner?
THE WITNESS: Yes.
* * * * * *
MR. RAMSHUR: What corner did you tie this legal description into?
THE WITNESS: The corner that I tied it into was the survey that I had previously made to the south. And I made a platted subdivision — I forget the name of the subdivision, but at the time I tied to a couple of corners. Previous to that I tied 1 to a corner to the west, I believe it was the section corner of one and two on the range line which is, which the county surveyor, around 1900, had rewitnessed and stated that he set from the original witness tree. And prior, not exactly on this survey, but from some of my records from these, I tied to these original corners. I mean, when I made this survey.
MR. RAMSHUR: The corners that you tied it into, were those the nearest section corner to the property?
THE WITNESS: The one to the south would have been, yes.
MR. RAMSHUR: And you tied them in, in the course of conducting this particular survey that you are testifying about?
THE WITNESS: Yes, I went back to this other survey and run the lines up through to the other corner of this prior work that I had done in previous years.
MR. RAMSHUR: All right. Thank you.”

Defendants made no objection to this testimony. On cross-examination, defendants’ attorney inquired further.

“Q. Are you testifying today that the corner which you tied this survey into was the southwest corner of this section?
A. I believe that is correct, but this southwest corner had also been tied to some others on the original evidence, and there is some original evidence, and there is also some original evidence in the west of this that I tied across to it.
Q. Are you talking about re-establishing those corners or are you talking about those corners as found on the ground by original notice?
A. As the lines as set on this survey, to the best of my knowledge, are set accurate from the original surveys. Part of them would have been re-established, but part of them are tied to record corners. From a couple of different directions. And there was. also evidence of the old stump of the lime tree which was called in the notes on the south side of the section.”

Upon the completion of his testimony, Brewer was excused, and Murphy was recalled. Plaintiffs’ attorney then continued his examination of Murphy. Defendants did not renew their objection to Murphy’s testimony, or challenge the adequacy of the foundation for such testimony in any other way. Nor did defendants object when Murphy was asked, “Did you base your own survey work on the work that was done by Mr. Brewer?,” to which he replied, “Yes. We found some of the points as set by Mr. Brewer, verified those and used those points.” At the conclusion of Murphy’s testimony, Plaintiffs’ Exhibit E, Brewer’s field sketch showing the road in question, was admitted into evidence without objection. Defendants at no time moved to strike any of the testimony related above.

By failing to specifically and timely object to the testimony of Brewer, and the subsequent testimony of Murphy,. defendants have not preserved anything for review. Federal Deposit Insurance Corp. v. Crimson, 513 S.W.2d 305, 307 (Mo.1974); Stafford v. Lyon, 413 S.W.2d 495, 498 (Mo.1967). Nor was it plain error to admit the testimony. Looking at the evidence, in the light most favorable to plaintiffs, it was clearly sufficient to show that Brewer, and Murphy, by his tie-in to Brewer’s survey, started their surveys from established government corners. The evidence conclusively established that Brewer’s survey began from a government corner. There is no reason why Murphy could not rely on it in beginning his own survey. See Watson v. Matson, 183 Mo.App. 298, 302-303, 166 S.W. 828, 829-830 (1914). Also, § 60.330, RSMo 1969, although apparently never cited or construed before, would seem to allow Murphy to rely on any corners legally established by Brewer. Murphy’s survey was sufficiently tied to an established government corner such that his testimony concerning it was admissible. Defendants’ sixth point is denied.

Defendants’ seventh point alleges that the trial court erred in ordering defendants to. remove “any and all gates and barriers” from,the road because all the gates and barriers did not unreasonably interfere with plaintiffs’ use of the road. Where the exclusion of the erection of a fence or gate across a right-of-way is not specifically set out in a grant or easement, courts must then consider the following factors: 1) the purpose for which the grant was made; 2) the intention of the parties as gleaned from the circumstances surrounding the grant; 3) the nature and situation of the property; and, 4) the manner in which the easement has been used. Teal v. Lee, 506 S.W.2d 492, 497 (Mo.App.1974). Having reviewed the record, we find that there was substantial evidence for the trial court, applying the Teal standard, to rule as it did and that the trial court’s judgment was not against the weight of the evidence. Point seven is denied.

The judgment is affirmed.

MAUS and PREWITT, JJ., concur.

BILLINGS, P. J., concurs in result.

      . Section 60.330 RSMo 1969: “This chapter shall in nowise be construed either to affect the legality of surveys heretofore legally made and recorded, or to prevent surveyors from taking advantage of any corners previously legally established.”


source: Caselaw Access Project

author: PREWITT, Judge.

license: Public Domain

text:
    Stella P. LYTLE, Plaintiff-Appellant, v. James W. PAGE, Defendant-Respondent.
    No. 10949.
    Missouri Court of Appeals, Southern District, En banc.
    Dec. 13, 1979.

      Christopher J. Stark, Springfield, for plaintiff-appellant.
    John Z. Williams, Williams & Smallwood, Rolla, for defendant-respondent.
   PREWITT, Judge.

Plaintiff appeals from a judgment determining that defendant owns an interest in certain real estate in Phelps County, Missouri. Plaintiff brought this action asking that a deed to defendant be set aside and the title to the real estate be quieted in plaintiff. Defendant counterclaimed, claiming that he has an interest in the property. The trial court, sitting without a jury, found against plaintiff on her petition and for defendant on his counterclaim.

Plaintiff and defendant are brother and sister. The property in question had been owned by their father, S. W. Page. S. W. Page died on November 20, 1966. An estate was opened in the probate court of Phelps County, and the subject tracts were included in the inventory of the estate, showing that decedent owned an “undivided one-half interest” in them. The inventory was apparently filed about December 9, 1966. On January 16, 1967, defendant recorded a warranty deed from S. W. Page to defendant, dated and acknowledged July 5, 1955. Three of the four tracts described in that deed were inventoried in the estate and are the disputed property here. The deed does not purport to limit the interest conveyed to any undivided portion of the property. On February 20, 1967, the probate court entered an order to sell certain real estate inventoried in the estate, including those three tracts. On September 24, 1968, all of the property was auctioned together, and plaintiff was the highest bidder. According to the administrator’s deed and the report of sale, the purchase price was $3,550. Plaintiff testified she paid $7,100 for the property and this is the price shown as received on the final settlement in the estate. It also shows that half of the sale proceeds were paid to decedent’s widow. After the sale, defendant filed objections to the report of sale, and on October 24 1968, the probate court approved the report and confirmed the sale. It found that the estate had an undivided one-half interest in the property and that defendant had “no right, title or interest to said described real estate”. Defendant appealed to the circuit court of Phelps County and the case was set for hearing on April 1, 1969. Defendant testified he was ill and unable to attend, and the court refused a continuance. No evidence was offered by defendant’s attorney and on that date the appeal was dismissed. The subject property, as well as the other real estate sold as part of the sale, was deeded to plaintiff by administrator’s deed dated April 17, 1969. On the same date decedent’s widow conveyed to plaintiff, by quit-claim deed, a part of the land described in the administrator’s deed. The estate owed defendant $1,891.04 and he filed a claim for that amount. The date of his claim and its nature is not in evidence. The final settlement reflects that he was paid on April 18, 1969.

The only dispute in the evidence pertains to the deed dated July 5, 1955, from S. W. Page to defendant. Defendant testified that the deed was delivered to him on that day but he did not record it because his father wanted to continue to use the property. Defendant said he took the deed to his home in Colorado Springs, Colorado and it remained there until after his father’s death when he recorded it. Defendant’s son testified that he saw the deed in defendant’s home in Colorado Springs prior to S. W. Page’s death. The parties’ sister testified that defendant told her that he found the deed among his father’s papers following his father’s death. She also stated that in a prior hearing in probate court, she incorrectly testified that she had seen the deed delivered during her father’s lifetime. She said she did this to keep her father’s widow, who was not her mother, from receiving the property and because defendant said he would sell the property and use the funds to take care of a crippled brother.

In detailed findings of fact, the trial court found that the deed of July 5, 1955 was delivered to defendant by S. W. Page prior to his death. It found that plaintiff' was the highest bidder at the administrator’s sale by her bid of $3,550; that defendant received $1,891.04 in payment of his claim and $301.15 as his share of the estate as an heir. The court further found that at the time plaintiff bid for the property or before she was required to pay her bid price, she knew defendant claimed the subject property. The court declared that defendant was the owner of an undivided one-half interest in two of the tracts and the owner of all of the third tract. The court ordered defendant to pay plaintiff the sum of $2,192.19, the total he received from the estate as a claimant and heir, with 6% interest from June 18, 1969.

As defendant’s interest, if any, in the property in question, arises from deed of July 5, 1955, we consider first plaintiff’s contention that the trial court erroneously found that the deed was delivered during the lifetime of S. W. Page. There was evidence by plaintiff that defendant stated he found the deed in his father’s papers. Defendant offered evidence that it was delivered to him and he had it in his possession from the day it is dated until he recorded it. Credibility of the witnesses is to be determined by the trier of fact. Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 420 (Mo.App.1975). Where there is conflicting testimony, deference is given to the trial court’s conclusions. Richardson v. Richardson, 524 S.W.2d 149, 151 (Mo.App.1975). There was substantial evidence to support the trial court’s determination that there was delivery, so we should not disturb that finding. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This point is ruled against plaintiff.

Plaintiff also contends that because defendant received certain funds from the estate in payment of his claim, and his share as an heir, that he has ratified' the sale and is estopped to deny its validity as these funds came from the sale of the disputed property. The evidence does not clearly show that he received anything as an heir, but the will and final settlement lead to the inference that he received at least $301.15, and the trial court so found. Other real estate was sold by the estate along with the real estate deeded to defendant. There was no evidence as to the respective values of any of the parcels sold. Apparently it was all sold together and one bid and deed covered all tracts. The order to sell real property recited that the property was being sold because the personal property of the estate “is insufficient for the payment of its obligations”. It appears that at least a portion of the proceeds from the subject real estate would have been applied to the payment of defendant’s claim and the trial court found that without the sale of the subject property there was insufficient assets to pay debts and claims of the estate, including defendant’s claim. It further determined that defendant knew that his claim and share as an heir was being paid from the sale proceeds.

Numerous cases hold that one who knowingly receives funds from a sale of his property, including a judicial sale, cannot thereafter deny the right of sale and claim title to the property. Some of the cases- making such holdings or statements and not hereafter discussed áre Roach v. Kohn, 361 Mo. 597, 235 S.W.2d 284 (1951); Cobb v. Massey, 160 S.W.2d 733 (Mo.1942); Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631 (1941); Milan Bank v. Richmond, 280 Mo. 30, 217 S.W. 74 (1919); Lawson v. Cunningham, 275 Mo. 128, 204 S.W. 1100 (1918); Capitain v. Mississippi Valley Trust Co., 240 Mo. 484, 144 S.W. 466 (1912) appealing after remand, 177 S.W. 628 (Mo.1915); Meddis v. Kenney, 176 Mo. 200, 75 S.W. 633 (1903); Mairs v. Knifong, 557 S.W.2d 682 (Mo.App.1977); Headlee v. Cain, 250 S.W. 611 (Mo.App.1923); Walker v. Hassler, 240 S.W. 257 (Mo.App.1922). Also see Annotations at 2 A.L. R.2d 133 and 50 A.L.R. 688. This result has been applied even if the vendor possessed no title and the sale would otherwise be void. Proctor v. Nance, 220 Mo. 104, 119 S.W. 409, 412 (1909). It has been held that where one received part of the purchase price at a judicial sale, he may not thereafter question the validity of the sale, even though it be absolutely void. Rhodus v. Geatley, supra, 147 S.W.2d at 638. While it has been called “estoppel” and “quasi-estop-pel”, whether this principle is properly classified under estoppel has been questioned. See Hector v. Mann, 225 Mo. 228, 124 S.W. 1109, 1116 (1910). Also see St. Louis Public Service Company v. City of St. Louis, 302 S.W .2d 875, 879 (Mo. banc 1957) and Magenheim v. Board of Education of the School District of Riverview Gardens, 347 S.W.2d 409, 419-420 (Mo.App.1961). It comes not from estoppel, but from election, ratification, affirmance, acquiescence, and acceptance of benefits. Hector v. Mann, supra, 124 S.W. at 1116. It is based on the premise that no person will be allowed to adopt that part of a transaction which is favorable to him, and reject the rest, Austin v. Loring, 63 Mo. 19, 22 (1876), and “on elevated morals, common honesty, and pure good faith”. Proctor v. Nance, supra, 119 S.W. at 412. It is perhaps more properly classified as “ratification” or “election” than estoppel. Rhodus v. Geatley, supra, 147 S.W.2d at 637-638. Whatever its designation, this principle is well established in the Missouri cases. Our supreme court has said: “There is no rule of equity more firmly settled and more just and reasonable than that one who knowingly receives the purchase price of his own estate sold by one assuming to act under a valid power estops himself, in equity, from denying the power.” Cobb v. Massey, supra, 160 S.W.2d at 735; Boone v. Oetting, 342 Mo. 269, 114 S.W.2d 981, 983 (1938).

Defendant contends that plaintiff had knowledge of defendant’s claim to the land and that because of this knowledge there can be no estoppel. Estoppel ordinarily requires that the one claiming it be misled by another’s conduct and this generally cannot occur where the one claiming it knew or had the means of knowledge as to the truth. Land Clearance for Redevelopment Authority of Kansas City v. Dunn, 416 S.W.2d 948, 951 (Mo.1967); Rhoads v. Rhoads, 342 Mo. 934, 119 S.W.2d 247, 252 (1938); Mairs v. Knifong, supra, 557 S.W.2d at 686. The trial court found that plaintiff had knowledge of defendant’s claim at the time she bid or paid her money and this fact apparently influenced that court’s determination. There was no question but that plaintiff knew of defendant’s claim. At the trial plaintiff was asked if she was aware that defendant was claiming a part of the property at the time she bid on it. She replied:

“Well, to my knowledge this had gone through probate court and been throwed out and then was put up at public auction, and I bought it because I thought it was cleared because it went through the probate court.”

Plaintiff’s reliance on the probate court’s ruling was ill-founded. The probate court did not have jurisdiction to decide whether the decedent owned the property at the- time of his death nor did the circuit court on appeal, as its jurisdiction was derivative. In re Schell’s Estate, 390 S.W.2d 618, 620 (Mo.App.1965). Probate courts cannot adjudicate title to real estate. Id. 390 S.W.2d at 620. If plaintiff was misled or relied on others’ conduct, it was not the defendant’s conduct but that of the probate court.

We must determine if plaintiff’s knowledge of defendant’s claim to the land, and lack of reliance on any conduct of defendant bars her claim under this point. The only Missouri cases we find which have considered this question hold that in such a situation as here, knowledge, or lack of it, and reliance by the purchaser is not a necessary element. In Austin v. Loring, supra, the court noted that the purchaser had the means of knowing whether the proceedings to sell the property were regular and that where one has not been misled to his damage and knew or had means of knowledge, that estoppel does not apply. However, they held that by receiving a portion of the proceeds, the owner ratified the sale and could no longer question it. Similar statements were made concerning a tax sale in Proctor v. Nance, supra, 119 S.W. at 412-413. Perhaps the clearest consideration of the necessary elements to invoke this type of “estoppel” or “ratification” is that set forth in Hector v. Mann, supra, 124 S.W. at 1116. There the court states:

“But there are other forms of estoppel in which knowledge of the fact upon the part of the person invoking the estoppel, and reliance upon the fact and a change of situation based upon that reliance; is. not an element.
. If it were to be held that one invoking the doctrine should know the fact of acceptance of the proceeds of a judicial sale, and in reliance upon that acceptance change his condition, the doctrine would have little application in the practical administration of justice. It is not the rule for purchasers at judicial sales to interest themselves in the distribution of the amount bid, . . . . It is sufficient that when their title is assailed they are able to show by way of defense that the assailant elected to affirm the transaction by accepting the fruits of the sale. A long line of cases in Missouri sustains that doctrine on grounds of elevated morals. In no case we can find, breaking on the exact point, was any stress laid upon the fact' that the party invoking this particular form of estoppel need know at the outset of the act of affirmance or change his position on the strength of it in order to make it effective as a defense.”

The opinion in Hector appears exhaustive and well-reasoned. No authority is cited to us nor have we been able to find any that convinces us that the reasoning there stated should not be followed. Knowledge of defendant’s claim did not prevent plaintiff from receiving that part of defendant’s interest sold under the probate court order when he thereafter ratified the sale.

The trial court required defendant to pay plaintiff the sums defendant received in payment of his claim and distributive shares with interest. Returning the funds later does not change the results of this principle as when defendant received the proceeds, the rights of the parties were fixed and the sale cannot be avoided by tendering back the funds received. Proctor v. Nance, supra, 119 S.W. at 413. In Hector v. Mann, supra, plaintiffs’ request to tender back the proceeds with interest in exchange for quieting title in them was denied. We believe that acceptance of the proceeds from the sale of the real estate bárs defendant from questioning the validity of the probate court sale.

The court’s judgment found that the defendant was the owner of an undivided one-half interest in tracts 1 and 2 and all of tract 3, as the tracts were numbered and described in the judgment. On the date of the deed to defendant. S. W. Page only had an undivided one-half interest in the first two tracts. He apparently had sole ownership of tract 3. The probate court only purported to sell an undivided one-half interest in these three tracts. Defendant’s ratification of this sale should only bar him from claiming title to the interest sold by the probate court. We find that defendant’s accepting the proceeds of the sale bars him from claiming any interest in tracts 1 and 2 as the one-half interest he claimed was sold by the administrator. Defendant’s former sole interest in tract 3, due to this ratification, becomes a one-half interest.

As plaintiff is seeking to divest defendant of all title to the real estate in question, we shall proceed to rule on her remaining points. The last point specified in appellant’s initial brief is that, if the trial court was correct in upholding the validity of the defendant’s title, it erred in failing to require the return of the entire purchase price paid by plaintiff together with all real estate taxes paid and improvements placed on the property with interest. There was no evidence as to improvements nor as to the amount of taxes paid. Moreover, this point is rendered moot in view of our ruling that plaintiff receives the title the estate thought it was conveying. Point III is denied.

In her reply brief plaintiff claims that by reason of certain conduct defendant was guilty of laches, which bars his claim to the property. This point was not raised in appellant’s initial brief. A claim of error first set forth in a reply brief does not present an issue for appellate review. Application of Gilbert, 563 S.W.2d 768, 771 (Mo. banc 1978). This claim of error is not before us.

The judgment is reversed and remanded for the entry of a judgment declaring that plaintiff is the owner of tracts 1 and 2 as the tracts are numbered and described in the judgment appealed from and that defendant has no interest therein and that plaintiff and defendant each own an undivided one-half interest in tract 3 as numbered and described in the said judgment. The new judgment should not contain any obligation on defendant’s part to pay to plaintiff the amounts received by defendant from the estate of S. W. Page.

All concur, except BILLINGS, J., re-cused.


author: COOPER, Justice.

text:
    METROPOLITAN DEVELOPMENT AND HOUSING AGENCY, et al., Appellants, v. The Honorable William LEECH, Attorney General for the State of Tennessee et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 10, 1979.

      Stone & Hinds, P.C., R. Thomas Stinnett, Knoxville, for Tinsley et al.
    George E. Barrett, Nashville, for Metropolitan Develop. & Housing.
    Dale C. Workman, Knoxville, for Knox Co. and C. Howard Bozeman, Judge.
    William M. Leech, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, James G. O’Kane, Poore, Cox, Baker, Ray & Byrne, Knoxville, for Knoxville Community Develop. Corp.
    John L. Kennedy, Metropolitan Atty., Nashville, for appellees.
   COOPER, Justice.

OPINION

This is a declaratory judgment action, questioning the constitutionality of the 1978 amendments to the Housing Authorities Law, T.C.A. § 13-801 et seq., contained in Acts 1978 (Adj.S.), ch. 854. The chancellor upheld the amended provisions, and the case is before us on appeal as of right, Tenn.R.App.Proc. 3, under the provisions of T.C.A. § 16-408, pertaining to the review of decisions in which the constitutionality of a statute is the sole determinative question. We affirm.

The several provisions under attack are appended to the text of this opinion for reference. In essence, their object is to provide a means by which a municipality may stimulate, and, in part, finance, the redevelopment of blighted urban areas. Under the statute, areas are selected for renewal by a housing authority, a “public body corporate” which, when constituted by a city, is effectively a municipal agency. See T.C.A. § 13-802, § 13-901 et seq. . . The property is purchased by the authority with funds from a bond issue, and then redeveloped as necessary and resold to private interests. After the sale, any property taxes due either the county or the municipality that are attributable to an increase in the property’s value after its purchase by the housing authority are allocated to the authority to retire the bonds that funded the purchase. When the bonds for a given project are retired, all property tax receipts from that tract are treated once more as are those from any other property. This method of financing urban renewal, termed “tax increment financing,” has been used in a number of other jurisdictions. See e. g., M.C.L.A. § 125.1664 et seq.; M.S.A. § 472A.01 et seq.

The appellants have questioned the constitutionality of the amended provisions on several grounds. Their more significant claims are those that arise with respect to Art. 2, § 29, and, by reference, Art. 2, § 28, of the state constitution. These sections provide, in pertinent part:

§ 28: . . . [A]ll property real, personal or mixed shall be subject to taxation, but the Legislature may except [certain species of property] .
The ratio of assessment to value of property in each class or subclass shall be equal and uniform throughout the State, . . Each respective taxing authority shall apply the same tax rate to all property within its jurisdiction. § 29: The General Assembly shall have power to authorize the several counties and incorporated towns in this State, to impose taxes for County and Corporation purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to State taxation. But the credit of no County, City or Town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held .

The appellants’ first argument is based upon the clause of Art. 2, § 29, which states that taxes may be imposed by the counties and cities “for County and Corporation purposes, respectively.” In the past, this provision has been interpreted as prohibiting either a county or a city from appropriating funds to a purpose not properly within its own sphere of action, either on its own initiative, or at State direction. See e. g., Judges Salary Cases, 110 Tenn. 370, 75 S.W. 1061 (1903). The appellants claim that this prohibition is violated by the statutory requirement that the county appropriate funds to a municipal housing authority within its borders, in that such an authority serves a municipal, and not county, purpose. We disagree. The upgrading of blighted urban areas is not only a municipal purpose, but the proper concern of both the county in which the municipality lies and the state as a whole. Cf. West v. Tennessee Housing Development Agency, 512 S.W.2d 275 (Tenn.1974); Oehmig v. City of Chattanooga, 168 Tenn. 618, 80 S.W.2d 83 (1935). The state may direct a county to expend funds for a state purpose, or for a purpose common to the state and the county, without falling afoul of Art. 2, § 29. Richardson v. City of Chattanooga, 214 Tenn. 384, 381 S.W.2d 1 (1964); Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388 (1938).

The appellants also contend that the amended statutes authorize the lending of public credit to a corporation, the housing authority, without prior authorization by the electorate, again in violation of Art. 2, § 29. This argument must fail because, as the housing authority alone is liable on the bonds issued, there is no lending of the credit of either the municipality or the county. See Fort Sanders Presbyterian Hospital v. Health and Educational Facilities Board of County of Knox, 224 Tenn. 240, 453 S.W.2d 771 (1970).

The appellants have also raised the question of whether there is a violation of those clauses of Art. 2, §§ 28 and 29 that require that all property be taxed uniformly according to its value. It is their theory that these provisions should be interpreted as requiring that all property subject to taxation by a particular taxing entity contribute to the expenses of that entity in proportion to its value, a requirement which, by their argument, would be violated by tax increment financing because it diverts a portion of the property taxes collected by the county on the redevelopment property to the housing authority, causing the redevelopment property to contribute less, in proportion to its value, to the cost of general county services. This argument is without merit. In the past, the requirements of taxing uniformity in these sections, insofar as they are relevant to this case, have been interpreted as requiring only that the tax burden apply equally to all nonexempt property. See, e. g., King v. Sullivan County, 128 Tenn. 393, 160 S.W. 847 (1913). We can find no reason to extend that interpretation as has been suggested by the appellants. However, even were we to do so, we do not believe that it would have any application here. The appellants’ argument appears to be implicitly grounded upon a misconception of the nature of tax increment financing. The statutes as amended do not grant the housing authority or the municipality any additional taxing power with respect to the redevelopment property, nor, conversely, do they take such power away from the county. Neither does the statute require that a given parcel contribute “its” taxes to the housing authority. When T.C.A. § 13-817 speaks of allocating a portion of the taxes received from the redeveloped property to the housing authority, it means only that the various taxing entities shall appropriate an amount equal to that specified portion of the taxes received from the subject property to the authority, not that the actual taxes received from that parcel are in any sense to be set aside. Given that money is perhaps the quintessential fungible good, we cannot believe that the legislature intended any other interpretation. Once it is recognized that we are dealing with a mandated appropriation, whose amount is regulated by the taxes received from the subject property, and not with a transfer, direct or indirect, of taxing power, the appellants’ argument fails.

The appellants next claim that the statute violates Art. 1, § 21 of the Tennessee constitution, and the due process clause of the 14th amendment of the federal constitution, by authorizing the taking of property without either the consent of the elected representatives of those affected, or adequate compensation. Assuming that a mandatory appropriation of tax funds may be construed to be a taking within the contemplation of these constitutional provisions, we find no violation. The statutory program has been authorized by the General Assembly. The legislature may, in its discretion, require the expenditure of local funds for appropriate purposes. Demoval & Co. v. Davidson County, 87 Tenn. 214, 10 S.W. 353 (1889). While certain decisions with respect to the implementation of the statute, including, indirectly, the amount of public funds that will be appropriated, have been delegated to the housing authority, there is no constitutional requirement that all bodies to which the legislature has delegated aspects of the implementation of its programs be directly accountable to the electorate. Cf. State v. Edwards, 572 S.W.2d 917 (Tenn.1978).

The appellants have raised, but do not press, a number of other arguments. Their claim that the statute violates the equal protection clause'of the 14th amendment of the federal constitution, in that the effect of tax increment financing is to place upon the owners of the redevelopment property proportionately less of the burden of paying for general county and municipal services, is based upon the same misconception of the nature of the statutory scheme as was discussed previously with respect to the appellants’ arguments predicated upon the uniform taxing provision of the Tennessee constitution, and is, for the same reason, baseless. The appellants have also failed to demonstrate any way in which the delegation of power to the housing authority is, as they claim, either excessive or improper. Cf. State v. Edwards, 572 S.W.2d 917 (Tenn.1978). Finally, with respect to the appellants’ claim that tax increment financing impairs the obligation of contracts, in violation both of Art. 1, § 10 of the federal and Art. 1, § 20 of the Tennessee constitutions, we note, first, that, as none of the appellants alleges that it is a party to a contract whose rights thereunder might be impaired by these statutes, none has standing to raise this question. However, we would say that, at least with respect to bonds and similar debt obligations of the taxing entities concerned, the provisions of T.C.A. § 13-817(7) appear to be sufficient to prevent any unconstitutional impairment.

The chancellor’s decree is affirmed. Costs will be taxed to the appellants.

BROCK, C. J., and FONES, HENRY, and HARBISON, JJ., concur.

APPENDIX

T.C.A. 13-804. Powers of housing authority. — An authority shall have the following powers:

(1) * * *
(5) To provide for the construction, reconstruction, rehabilitation, improvement, alteration or repair of any housing project or any part thereof by direct sponsorship of the authority, by the purchase of a mortgage or by the making of a mortgage loan to a not-for-profit entity
or corporation. Provided, however, that in the event it becomes necessary for an authority to issue bonds for the obtaining of capital to purchase a mortgage or the making of a mortgage loan as provided for in this section, said bond issue shall first be approved by ordinance or resolution of the local governing body.
(6) * * *

T.C.A. 13-813. Blighted areas defined.— Blighted areas are areas (including slum areas) with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use, or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.

T.C.A. 13-814. Powers of housing authority as to blighted areas. — Any housing authority now or hereafter established under and pursuant to the provisions of the Housing Authorities Law (including any municipal housing authority whether created under and pursuant to the provisions of such law or of any special statute) may carry out any undertaking hereinafter called a redevelopment project and to that end may:

(1) acquire blighted areas;
(2) acquire other real property for the purpose of removing, preventing, or reducing blight, blighting factors, or the causes of blight;
(3) acquire real property where the condition of the title, the diverse ownership of the real property to be assembled, the street or lot layouts, or other conditions, prevent a proper development of the property and where the acquisition of the area by the authority is necessary to carry out a redevelopment plan;
(4) clear any areas acquired and install, construct, or reconstruct streets, utilities, and site improvements essential to the preparation of sites for use in accordance with the redevelopment plan;
(5) Sell or lease land so acquired for uses in accordance with the redevelopment plan;
(6) Accomplish a combination of the foregoing to carry out a redevelopment plan; and/or
(7) Have and enjoy all the rights, powers, privileges and immunities granted to housing authorities under such law, and/or under any special act by which the authority may have been created, and/or any other provisions of law relating to slum clearance and housing projects for persons of low income;
(8) Borrow money upon its bonds, notes or other evidences of indebtedness to finance any of the foregoing and to carry out a redevelopment plan and secure the same by pledges of its income and revenues generally or its income and revenues from a particular redevelopment project or projects, including moneys received by any authority and placed in a special fund or funds pursuant to tax increment financing provisions contained in a redevelopment plan, or from grants or contributions from any government, or in any other manner.
Provided that nothing contained in §§ 13-812, 13-913 and/or in any special municipal housing authorities law shall be construed as limiting the power of an authority, in the event of default by a purchaser or lessee of land in a redevelop-; ment plan, to acquire property and operate it free from restrictions contained in said §§ 13-812, and 13-913 or in any special statute as aforesaid relating to tenant selection or operation without profit.

T.C.A. 13-817. Redevelopment plan containing tax increment financing provisions — Allocation of taxes collected — Contents of plan — Tax status of property leased.

(1) Any authority may, and is hereby authorized to, adopt a redevelopment plan or to amend an existing redevelopment plan so that it contains a tax increment financing provision providing that taxes, if any, levied upon property leased or sold to individuals or corporations for development in a redevelopment project each year, by any taxing agency after the effective date of the resolution of the governing body approving such redevelopment plan or amendment, shall be divided as follows:
(a) That portion of the taxes which would be produced by the rate at which the tax is levied each year by each taxing agency upon the assessed value of such property as shown upon the assessment roll of the appropriate assessor as of the date of the most recently determined valuation prior to the acquisition of such property by the authority (said assessment value being herein called the “base assessment”), shall be allocated to, and when collected, shall be paid to the respective taxing agencies as taxes levied by such taxing agencies on all other property are paid; provided, however, that in any year in which the actual assessment of the area comprising a redevelopment project is less than the base assessment, .there shall be allocated and paid to the respective taxing agencies only those taxes actually produced by the application of the current tax rates against such actual assessment;
(b) All the taxes levied in each year in excess of the amount provided for in sub-paragraph (a) of this paragraph shall be allocated to and, when collected, shall be paid into a special fund or funds of the authority to pay the principal of and interest on bonds, loans or other indebtedness incurred or to be incurred by the authority to finance or refinance, in whole or in part, the redevelopment project contemplated by such redevelopment plan;
(c) Upon the retirement of all bonds, loans or other indebtedness incurred by the authority and payable from such special fund or funds or at such time as moneys on deposit in such special fund or funds are sufficient for such purpose, all the taxes referred to in subparagraph (b) hereof shall, when collected, be paid to the respective taxing agencies as taxes levied by such taxing agencies on all other property are paid; and
(d)Taxes shall be levied and collected over all or any part of the area comprising a redevelopment project in the manner provided by law with the following exceptions:
(1) The appropriate assessor shall, in each year during the period in which taxes are to be allocated to the authority pursuant to (b) above, compute and certify the net amount, if any, by which the then current assessed value of all taxable property which is subject to taxation by the particular taxing agency exceeds the base assessment. The net amount of any such increase is referred to in this subpar-agraph (d) as the incremental value for that particular year.
(ii) In any year in which taxes are to be allocated to the authority pursuant to (b) above in which there is an incremental value, the appropriate assessor shall exclude it from the assessed value upon which he computes the tax rates for taxes levied that year by the taxing agency. However, he shall extend the aggregate tax rate of such taxes against the base assessment and the incremental value and shall apply the taxes collected therefrom, subject to any other provisions hereof, as provided above.
(iii) For purposes of this Section [13-817,] if in any year property comprising a portion of a particular redevelopment project shall be removed from the tax rolls of a taxing agency, the base assessment for the area of such redevelopment project shall be reduced by the amount of the base assessment allocable to the property so removed for each subsequent year in which taxes are to be allocated to a particular authority pursuant to the above provisions.
(2) If an authority adopts á redevelopment plan or an amendment to an existing plan which includes tax increment financing provision, such new plan or the existing plan, as so amended, shall describe, in addition to the matters required by paragraphs (1), (2) and (3) of Section 13-815, the following:
(a) An estimate of the cost of the redevelopment project;
(b) The sources of revenue to finance the costs of the project, including the estimated tax increment;
(c) An estimate of the amount and the final maturity of bonded or other indebtedness to be incurred; and
(d) An estimate of the impact of the tax increment financing provision upon all taxing agencies in which the redevelopment project is to be located.
The foregoing information set forth in this paragraph shall be made available to the public not less than five (5) days prior to the date set for the public hearing hereinafter required by paragraph (3) of this section.
(3)No redevelopment plan containing a tax increment financing provision or amendment to an existing plan adding a tax increment financing provision shall be effective unless and until it has been approved by the governing body of the municipality following a public hearing as provided in Section 13-815. The notice of the public hearing shall be given in the manner and shall contain the information required by Section 13-815 and shall additionally set forth in clear and plain language the contemplated use of tax increment financing in connection with the redevelopment project. Such notice shall also set forth where the information required by subsection (2) of this section may be obtained. Not less than twenty-one (21) days prior to the date set for the public hearing, the governing body shall deliver or mail, postage prepaid, to each taxing agency currently levying taxes upon any property in the project area, and which would be affected by the tax increment financing provision, a copy of the notice of the public hearing, together with a statement that if the redevelopment plan containing a tax increment financing provision or amendment to an existing plan adding a tax increment financing provision is approved, certain property taxes resulting from increases in assessed valuation of property situated within the area included in the plan above the assessed value of such property appearing on the appropriate assessment rolls at last determined prior to the acquisition of such property by the authority may be allocated to a special fund or funds of the authority for redevelopment purposes rather than being paid into the treasury of the taxing agency.
(4) The foregoing provisions of subsection (2) and (3) above shall not apply to any redevelopment plan or amendment to an existing plan which included a tax increment financing provision and which has been submitted to and approved by the governing body of the municipality (or agency designated by it or empowered by law so to act) in which any of the area to be covered by the redevelopment project is situated pursuant to and in accordance with the provisions of Section 13-815 prior to [the effective date of this act] and said previously approved redevelopment plan or amendment thereto described above shall not be required to be resubmitted and approved by said governing body (or agency) pursuant to the additional provision of subsections (2) and (3) above. Provided, however, that the remaining provisions of this subsection shall be applicable to and govern said previously approved plan and the tax increment financing provision contained therein.
(5) After the approval by the governing body of a redevelopment plan containing a tax increment financing provision or an amendment to an existing plan adding a tax increment financing provision, the clerk or other recording official of such municipality shall transmit to the appropriate tax assessors and to each taxing agency to be affected, a copy of the description of all land within the redevelopment area and the date or dates of its acquisition by the authority, a copy of the description of all property leased or sold to individuals or corporations for development in the redevelopment area, a copy of the resolution approving the redevelopment plan or approving an amendment thereto, and a map or plat indicating the boundaries of such property, and taxes shall thereafter, when collected, be alio-cated and paid in the manner provided in such redevelopment plan or amendment thereto.
(6) Any property which the authority leases to private individuals or corporations for development under a redevelopment plan and any property which the authority has developed under a redevelopment plan and leases to private individuals or corporations shall have the same tax status as if such leased property were owned by such private individuals or corporations.
(7) Notwithstanding anything to the contrary in this Section [13-817], taxes levied upon property subject to tax increment financing provisions by any taxing agency for the payment of principal of and interest on all bonds, loans or other indebtedness of such taxing agency and taxes levied by or for the benefit of the State of Tennessee shall not be subject to allocation as provided in subsection (1) of this section, but shall be levied against such property and, when collected, paid to such taxing agency as taxes levied by such taxing agency on all other property are paid and collected.”

      . Excepting taxes levied by any taxing agency for the payment of bonds or other indebtedness. T.C.A. § 13-817(7).


author: FONES, Justice.

text:
    Frank Robert PAYNE, Appellant, v. Harold “Whitey” RAMSEY, June Brackett and David Collins, Appellees.
    Supreme Court of Tennessee.
    Dec. 27, 1979.

      James D. Hutchins, Hutchins & Estes, Athens, for appellant.
    Roger E. Jenne, Elliot, Goode, Jenne Var-nell & Scott, Cleveland, for appellees.
   OPINION

FONES, Justice.

This is an election contest arising from the sheriff’s election held in Polk County on August 3,1978. Appellee, Harold “Whitey” Ramsey, was the incumbent Democratic candidate, and appellant, Frank Robert Payne was the Republican challenger. The official tabulation declared Ramsey the winner by 137 votes. In the precinct voting Payne received 2182 votes, and Ramsey received 2023 votes. In the absentee voting Payne received 20 votes, and Ramsey received 316 votes.

Payne filed suit in Polk County Chancery Court under T.C.A. §§ 2-1712 and 2 — 701 et seq. alleging irregularities in the absentee and precinct voting and seeking to have the election declared void or a tie or that he be declared the winner. At the close of appellant’s proof the chancellor overruled appel-lee’s motion for summary judgment but held that the asserted irregularities in the precinct voting were not of such magnitude to require voiding those votes. Appellee was required to defend against only the alleged irregularities in absentee voting. At the close of all the proof, the chancellor took the case under advisement and on November 7, 1978, rendered his decision. Of the absentee ballots, the chancellor invalidated 37 because no reason for voting absentee was given, 2 because of incomplete affidavits, 10 because of discrepancies in the signatures, and 2 because the voters applied for absentee ballots when they knew that they would be in Polk County on election day. The chancellor refused to void the election or change the result because the fraud was not so prevalent “that the election results did not express the will of the majority. Also, there [was] no proof of irregularities with a sufficient number of the absentee ballots that would change the outcome.” The election contest was dismissed.

Appellant has raised fifteen assignments of error that we will treat in four groups for purposes of convenience. First, appellant contends that the trial court erred in failing to void precinct votes for voters who voted in the wrong precinct, who voted when their names did not appear on the permanent registration list, and who did not sign the poll lists. From our examination of the record we agree with the Chancellor that these irregularities are not of such magnitude to justify voiding the votes cast in these precincts. This is not to suggest that statutory directives on voting procedure should be regarded as frivolous and inconsequential. We find only that these irregularities did not amount to fraud that would affect the result or make the outcome uncertain. Summit v. Russell, 199 Tenn. 174, 285 S.W.2d 137 (1955).

Appellant’s second assignment of error asserts that appellee’s election was void because appellee was ineligible to be a candidate in the Democratic primary held in May 1978. This assignment of error must fail because of appellant’s lack of standing to sue. Appellant is the Republican candidate challenging the results in the general election, however, the basis of appellant’s challenge . is appellee’s eligibility in the Democratic primary election. Under the circumstances of this case, T.C.A. § 2-1704 limits standing to Democratic candidates who opposed appellee in the primary. See Dobbins v. Crowell, 577 S.W.2d 190, 193 (Tenn.1979).

Appellant’s third assignment of error challenges the propriety of the chancellor’s decision to permit appellant’s handwriting expert only two days in which to examine documents, specimens, and other related evidence. Appellant has failed to demonstrate any abuse of discretion or prejudice arising from the Chancellor’s ruling. See T.R.C.P. Rule 34; Harrison v. Greeneville Ready-Mix, Inc., 220 Tenn. 293, 417 S.W.2d 48 (1966). The assignment is overruled.

Appellant’s fourth group of assignments of error focuses on alleged improprieties in the absentee voting. The chancellor reviewed these allegations and concluded that fifty-one absentee votes should be voided because of statutory violations. Appellant would have us void all of the absentee ballots. This we decline to do. The only basis that appellant offers for overturning the entire absentee ballot is the fact that the list of absentee voters was published in the newspaper on election day not four days before the election as required by T.C.A. § 2-615:

“For each election the county election commission shall publish in a newspaper of general circulation, on the fourth day before election day or as near thereto before election day as possible, a complete, alphabetically arranged list by precinct of all persons who voted absentee by personal appearance and also of all persons who voted absentee by mail.”

The newspaper in which the list was published is one of two weekly newspapers published in Polk County. The fact that the normal date for publication fell on election day was a matter of coincidence over which the election commission had no control. Publication one week prior to the election of a'complete and accurate list of absentee voters was impossible because under T.C.A. § 2-609 voters can vote absentee by personal appearance until five days before the election. Under the circumstances confronted by the Polk County Election Commission, it did all that could be done to comply with the statutes and we decline to void the absentee ballots in their entirety.

The chancellor voided a total of fifty-one absentee ballots. Thirty-seven absentee votes were invalidated because the application stated no reason for voting absentee. Two votes were invalidated because the affidavits were incomplete. On the basis of the unrefuted testimony of a questioned-document examiner ten votes were invalidated because the signature on the application failed to match the signature on the permanent voter registration form. Two votes were invalidated because the voters testified they voted absentee knowing that they would be in Polk County on election day.

From our review of the testimony and exhibits we conclude that each of these votes was correctly invalidated. We would invalidate two additional absentee ballots because of the unrefuted testimony of the questioned-document examiner.

In his assignments of error appellant has challenged other absentee ballots for the following specific irregularities: twenty-three votes by mail for which the affidavits were completed by someone other than the attesting official; ten votes by mail and personal appearance with incomplete applications; one vote for which the application was not signed by the voter; two votes for which the voter was over sixty-five years of age but who voted by mail instead of by personal appearance; one vote for which the voter claimed to be over sixty-five when he was actually sixty-four years old, one vote for which the voter was incarcerated at the time he voted absentee; ten votes for which the voter required assistance but the requirements of T.C.A. § 2-604 were not met; five votes for which the voters allegedly received payment for voting; and eight votes that were attested to by a notary whose commission had expired.

We find no error in the chancellor’s refusal to invalidate the twenty-three votes for which the affidavits were completed by someone other than the attesting official. From our review of the record, we are satisfied these votes comply with the requirements of T.C.A. § 2-611. As to the thirty-eight other disputed votes, we find they are not in compliance with the statutory requirements for absentee voting, specified at T.C.A. § 2-601 et seq., therefore, they must be invalidated. Hillard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (1963).

This Court has invalidated forty absentee votes in addition to the fifty-one absentee votes invalidated by the chancellor. However, these additional void ballots are not sufficient to change the outcome of the election or to render the outcome incurably uncertain. For this reason the judgment of the chancellor is affirmed. Costs are adjudged against appellant.

BROCK, C. J., and COOPER, HENRY and HARBISON, JJ., concur.


author: TODD, Judge.

text:
    STATE of Tennessee, Appellant, v. Jeffrey G. WOMACK, Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Nov. 28, 1979.
    Certiorari Denied by Supreme Court Dec. 3, 1979.

      John J. Hollins and Edward M. Yarb-rough, Nashville, for appellee.
    John C. Zimmermann, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, of counsel, Victor S. Johnson, III, Asst. Dist. Atty., Nashville, Thomas H. Shriven, Dist. Atty. Gen., of counsel, for appellant.
   TODD, Judge.

OPINION

The. State of Tennessee has appealed from an order of the Circuit Judge granting a petition for certiorari and supersedeas and reversing an order of the Juvenile Court which quashed certain subpoenas issued at the instance of the accused.

As received in this Court, the record of the Circuit Court contained no' transcript of proceedings of the Juvenile Court. In response to the writ of certiorari issued by this Court upon its own motion, the Clerk of the Juvenile Court has certified and transmitted to this Court a transcript of the proceedings of the Juvenile Court in this cause. Newport v. Rowen, 5 Tenn. (4 Haywood) 196 (1817).

Said record contains a “Petition” sworn to by Sgt. Douglas Dennis on August 28, 1979, and asserting that, on or about February 25,1975, Jeffrey Glenn Womack, a child under the age of 18 years, committed a felonious assault and murder upon Marcia Virginia Trimble, aged 9 years. Said petition also contains a notation over the signature of the Clerk of the Juvenile Court as follows:

“Jeffrey Glenn Womack was taken into custody on 8-28-79 at 2:30 AM o’clock and placed in detention.”

The next item in the record is a “Motion for Discovery and Inspection” filed on behalf of the defendant. This motion was subsequently denied by the Juvenile Judge, and no action has been taken to obtain review of his decision. It is not before this Court on this appeal.

The record contains three subpoenas for witnesses to testify “in the interest of” the defendant. One is for Dr. Jerry Francisco to appear with his notes concerning the autopsy on the body of Marcia Trimble. Another is for Lt. Sherman Nickens, Chief of Homicide Division, Nashville Police Department to appear with six groups of documentary evidence from the police files. The third subpoena is for Diane Vaughn, Nashville Police Force, to appear with a pair of spectacles identified as the property of the mother of the deceased.

The record contains an undated decree of the Juvenile Court stating that the Court heard motions to quash the three above mentioned subpoenas “upon the argument of counsel” and concluding as follows:

“From all of which the Court finds and reaffirms its decision to sustain the State’s position and quash the subpoenas referred to the defendant.”

Finally, the record from the Juvenile court contains the following certificate of the Juvenile Judge:

“This is to certify that there was no evidence presented in the case of Jeffrey Glenn Womack, all hearings were on motions.”

On October 3,1979, the defendant filed in Circuit Court a petition for writs of certio-rari and supersedeas, exhibiting an uncerti-fied copy of the decree of the Juvenile Court as above mentioned.

On October 4, 1979, the State filed an answer denying the authority of the Circuit Court to review said decree and asserting that said decree was correct.

On October 4, 1979, the Circuit Judge entered an order sustaining the petition and ordering:

“. . . that . . . the Clerk ... . issue a writ of certiorari and supersedeas to the . . . Judge of the Juvenile Court . . . reversing and superseding the order quashing the subpoenas . . . ”

From said order an appeal has been allowed by the Circuit Judge and accepted by this Court.

The brief of the State proposes the following issues on appeal:

“1. Whether the Circuit Court possessed the authority to grant writs of certiorari and supersedeas for an order of the Juvenile Court rendered during disposition of a transfer hearing where the provisions of Tennessee Code Annotated Section 37-258(d) prohibit any civil or interlocutory appeal from orders of a juvenile court during transfer proceedings.
2.. Whether the Juvenile Court possessed the authority to quash subpoenás for State witnesses which were requested by the defendant for the purpose of discovery and where no showing was made by the defendant that such witnesses would be offered to negate the State’s evidence tending to establish probable cause that the defendant committed the charged offense.”

Appellant’s first insistence is that “the Circuit Court had no authority to grant writs of certiorari and supersedeas over the Juvenile Court’s order.”

Appellant insists that jurisdiction of this proceeding is placed in the Criminal Court by T.C.A. § 37-258(d) which reads in pertinent part as follows:

“(d) There shall be no civil or interlocutory appeal from a juvenile court’s disposition pursuant to § 37-234. In cases where the juvenile court has found that a child should be tried as an adult, pursuant to § 37-234(a), the criminal court, upon motion of the child filed within ten (10) days of the juvenile court order, shall hold a hearing as expeditiously as possible to determine whether it will accept jurisdiction over the child, provided that if no motion is filed with the criminal court within the ten (10) day period, the child shall be subject to indictment, presentment or information for the offenses charged and thus subject to trial as an adult . .” (Emphasis supplied)

This is not a civil or interlocutory appeal from a disposition of the cause by the Juvenile Court. This is an action of common law certiorari to correct a pre-trial action of the Juvenile Court. There has been no disposition of the case by the Juvenile Judge. Transfer to Criminal Court is only one of the possible results. A possible transfer to Criminal Court is not sufficient grounds for negating the statutory general authority of the Circuit Court in favor of the specific, limited authority of the Criminal Court which does not arise until transfer.

T.C.A. §§ 16-501,16-512, and 27-801 provide as follows:

“16-501. General jurisdiction.—The circuit court is a court of general jurisdiction, and the judge thereof shall administer right and justice according to law, in all cases where the jurisdiction is not conferred upon another tribunal.”
“16-512. Appellate Jurisdiction.—The circuit court has an appellate jurisdiction of all suits and actions, of whatsoever nature, unless otherwise provided, instituted before any inferior jurisdiction, whether brought by appeal, certiorari, or in any other manner prescribed by law.”
“27-801. Constitutional basis.—The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.”

Under § 16-512 the Circuit Court has appellate jurisdiction of decisions of the Juvenile Courts. State v. Bookman, 139 Tenn. 422, 201 S.W. 741 (1917); Doster v. State, 195 Tenn. 535, 260 S.W.2d 279 (1953).

Although the record does not disclose the exact nature of the Juvenile Court hearing for which the subpoenas were issued, the briefs of both appellant and appellee refer to the impending hearing as a “transfer hearing.” Therefore this Court will deal with the issues as though the record revealed such.

A “transfer hearing” is provided by T.C.Á. § 37—234 which reads in pertinent part as follows:

“37-234. Transfer from juvenile court.—(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this state, the court, before hearing the petition on the merits, may transfer the child to the sheriff of the county to be held according to law and to be dealt with as an adult in the criminal court of competent jurisdiction. The disposition of the child shall be as if he were an adult if:
(1) The child was sixteen (16) years or more of age at the time of the alleged conduct, or the child was fifteen (15) or more years of age at the time of the alleged conduct if the offense charged included murder, manslaughter, rape, robbery with a deadly weapon or kidnapping;
(2) A hearing on whether the transfer should be made is held in conformity with §§ 37-224, 37-226, and 37-227;
(3) Reasonable notice in writing of the time, place and purpose of the hearing is given to the child and his parents, guardian or other custodian at least three (3) days prior to the hearing; and,
(4) The court finds that there are reasonable grounds to believe that:
(i) The child committed the delinquent act as alleged;
(ii) The child is not committable to an institution for the mentally retarded or mentally ill; and,
(iii) The interests of the community require that the child be put under legal restraint or discipline.
(b) In making the determination required by subsection (a) of this section, the court may consider, among other matters:
(1) The extent and nature of the child’s prior delinquency records;
(2) The nature of past treatment efforts and the nature of the child’s response thereto;
(3)Whether the offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
' (4) Whether the offense was committed in an aggressive and premeditated manner; and,
(5) The possible rehabilitation of the child by use of procedures, services and facilities currently available to the court in this state.”

It is seen from the above that a “transfer hearing” in Juvenile Court involves many issues, of which the first is whether there are reasonable grounds to believe the child committed the delinquent act as alleged.

Until a juvenile has been “transferred” to the Criminal Court, the proceeding against him is civil in nature and appellate review and supervision of the cause resides in the civil and not the criminal courts of the State. T.C.A. § 37-233. Juvenile Court of Shelby County v. State, 139 Tenn. 549, 201 S.W. 771 (1918).

This Court respectfully overrules appellant’s objection to the jurisdiction of the Circuit Court.

Appellant next insists that the Circuit Court abused its authority in reversing the action of the Juvenile Court. This complaint will be treated as an allegation that the action of the Circuit Judge amounted to reversible error because the Juvenile Judge committed no error reversible by certiorari.

Appellant insists that the Juvenile Judge has not “exceeded the jurisdiction conferred” or “acted illegally” without “plain, speedy and adequate remedy”, as required by T.C.A. § 27-801, quoted above.

Under the restrictive terms of T.C.A. § 27-801, the Circuit Court had authority to correct an essential illegality in the action of the Juvenile Judge which deprived the juvenile of procedural rights assured by Federal and State Constitutions.

As stated in State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 192 S.W. 931 (1917):

“. . certiorari (applies when) the essential forms of the law have not been observed.” 137 Tenn. at 250, 192 S.W. at 933.

In Taylor v. Continental Tennessee Lines, Inc., 204 Tenn. 556, 322 S.W.2d 425 (1959) the Supreme Court held that refusal of the privilege of filing a plea in abatement was a “failure to proceed according to the essential requirements of the law” and “was contrary to law and in legal effect . a denial ... of their day in court.”

Appellant insists, correctly, that, since the Juvenile Court has the authority to issue subpoenas, it has the authority to quash subpoenas. Appellant further insists, correctly, that the quashing of subpoenas was not beyond the authority of the Juvenile Judge.

However, the exercise of authority in such manner as to deprive an accused of á substantive procedural right (to compel attendance of witnesses) guaranteed by the Federal and State Constitutions is an essential illegality committed within actual powers which will authorize relief by certiorari. Constitution of the United States, Amendments VI and XIV; Constitution of Tennessee, Article 1, Secs. 8 and 9.

In Moore v. State, Tenn.1979, 578 S.W.2d 78, the accused was arrested upon a General Sessions Warrant, but, the District Attorney General “took the case to the Grand Jury” before the General Sessions preliminary hearing. After indictment, the Criminal Judge abated the indictment and remanded to the General Sessions Court for a preliminary hearing. The Court of Criminal Appeals reversed, but the Supreme Court reversed the Court of Criminal Appeals, affirmed the action of the Criminal Judge and said:

“It is settled law in this jurisdiction that while a preliminary hearing is not constitutionally required, it is a critical stage of a criminal prosecution mandated by statutory law, and is an adversary proceeding at which the usual rules of evidence- apply. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 387 (1970); Waugh v. State, 564 S.W.2d 654 (Tenn.1978); McKeldin v. S.W.2d 82 (Tenn.1974).” State, 516

In the view of this Court, the “transfer hearing” in Juvenile Court is no less a critical stage than the preliminary hearing in Moore, indeed, it is the exact counterpart of the General Sessions preliminary hearing to the extent of the issue of probable cause. The rule should be the same for both proceedings.

Appellant next insists the juvenile has a plain and speedy remedy in the Criminal Court (if the Juvenile Judge should order transfer). This Court does not agree. The right of the juvenile to a full and fair hearing before the juvenile judge is virtually identical to the right of an adult to a full and fair preliminary hearing before a General Sessions Judge. There is no reason in justice and fairness that a juvenile should be deprived of his rights in Juvenile Court simply because he might later assert those rights in a later hearing before another court. If the juvenile is not to receive a full and fair hearing with due process in Juvenile Court, and must wait transfer to the Criminal Court to have the benefits of his constitutional rights, then the juvenile hearing is a waste of time and energy and should be abolished.

This principle is emphasized in the case of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 527 (1967), wherein the United States Supreme Court held that there is no difference between the constitutional rights of juvenile citizens and those of adult citizens, and reversed a juvenile commitment for lack of due process. See also Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed. 84 (1966) which involved a “transfer order” from Juvenile Court.

The appellant’s contention that the action of the Juvenile Judge was not, by its nature, subject to reversal by the Circuit Judge is respectfully rejected.

Appellant insists, correctly, that there is no provision for discovery, as such, as a part of a pre-trial “probable cause hearing”, and that the reception of evidence at such a hearing should properly be confined to issues before the court at the time.

Appellant also insists, correctly, that a court has the power and the duty to prevent abuse of its process by abating subpoenas for witnesses whose testimony would be immaterial.

Contrary to the insistence of the appellant, .this Court considers that the right to process to compel the attendance of witness is so fundamental to our system of justice (U.S. Constitution, Amendments VI and XIV, Constitution of Tennessee, Article 1, Sections 8 and 9), and the right to a preliminary hearing is so well recognized (State v. Moore, supra) that when a motion is made to quash a subpoena issued at the instance of an accused for a preliminary probable cause hearing, the burden is upon the movent to make a prima facie showing by acceptable evidence that the issuance of the subpoena was ah abuse of the processes of the court because the witness is without information as to any material issue in the case. In Bacon v. State, 215 Tenn. 268, 385 S.W.2d 107 (1964) the evidence received by the Court was informal in the extreme. (The officer serving the subpoenas told the judge that the witnesses had told him that they knew nothing about the case). There was no objection to the informality of the evidence, hence, there was no occasion to rule upon its admissibility. The Supreme Court simply observed that when informed that the Trial Judge “had information that the witnesses were without knowledge, at this point the burden shifted to the defendant to inform the Trial Judge the nature of the testimony to be expected from these people . . .’’In the same case, the Supreme Court said:

“A trial judge has no discretion as to who he shall allow a defendant to subpoena. If a prospective witness is or probably will be a material one then a defendant has a constitutional right to have compulsory process. The matter turns on whether the issuance of process would in fact be an abuse of process, and, if the Court finds such is the case the Court has power to prevent such abuse.” (215 Tenn. at 273, 385 S.W.2d at 109)

The informal presentation mentioned in Bacon would hardly withstand serious objection as to competency and form. A more orderly and acceptable presentation would include an exhibit to the motion to quash in the form of affidavit or affidavits of the subpoenaed witness or “other competent person that the witness is without knowledge or denies knowledge. Such would require counter affidavit or affidavits of grounds to believe that the witness does in fact have knowledge.

In Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967) the Supreme Court held:

“[3-5] The right of a criminal defendant to present witnesses in his own behalf, is a basic constitutional safeguard; consequently, any rule which abridges this right must be examined with scrutiny.” (220 Tenn. at 17, 413 S.W.2d at 680-681)

Since no evidence was heard by the Juvenile Judge, there is nothing in this record to support the action of the Juvenile Judge in quashing the subpoenas. Until abuse of process has been shown factually, there is no ground for quashing a properly issued and executed subpoena.

Appellant argues that the juvenile is seeking to “force the State to produce all its witnesses.” It is hornbook law that generally no party “owns” a witness. The process of subpoena is available to any party to compel the presence of any person to give evidence regardless of whether the witness is claimed by the opposite party.

Appellant insists, correctly, that, at a probable cause hearing, the prosecution is not required to present all witnesses having knowledge of the facts. However, this does not prohibit the accused from calling witnesses to negative probable cause, even if they are claimed by the prosecution as “its witnesses.”

Appellant next insists that an accused has no right to use the transfer hearing “as an independent vehicle for discovery prior to trial.” Conceding that evidence which is immaterial to the issues to be decided may not be elicited over objection, evidence which is material to the issues may not be excluded merely because adversary or the Court conceives that the purpose of discovery is being served.

It is inherent in the nature of any eviden-tiary hearing that the parties “discover” what the witnesses say and may use such information in preparation for future hearings.

In short, the real or supposed motive of discovery is not a justifiable ground for refusing an accused the right to the testimony of any witness who has knowledge of facts material to the issues to be decided at the hearing.

United States v. Wilkins, U.S.D.C., E.D.Pa., 422 F.Supp. 1371 (1976), cited by appellant, is not controlling here for a number of reasons. The ruling was upon a motion for a new trial on the ground that the prosecutrix did not testify at a preliminary hearing. There is no indication that the defendant actually subpoenaed the witness; and there is nothing in said opinion to indicate that the decision is based upon the failure of the accused to establish the materiality of the testimony of the witness. Also, the right of unlimited cross examination is not recognized in the Federal Courts (Federal Rules of Evidence, 611[b]), whereas it is recognized in Tennessee (Raj v. Hutchison, 17 Tenn.App. 477, 685 S.W.2d 948 (1933)).

In United States v. Wilkins, supra, the trial judge did state in his opinion:

“. . .Of course, where a preliminary examination is held discovery may be a collateral or incidental benefit to the defendant. United States v. Johnson, 514 F.2d 92, 94 (5th Cir.), cert. denied, 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (1975); United States v. Anderson, 481 F.2d 685, 691 (4th Cir. 1973), aff’d, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 21 (1974); United States v. Brumley, 466 F.2d 911, 915, 916 (10th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973).” (422 F.Supp. at 1375)

Appellant insists that:

“it is clear that the only reason is to discover the State’s case and not for the purpose of negating probable cause.”

There is no evidence in this record to support this insistence, or the finding of the Juvenile Judge to this effect. Moreover, as previously stated, such a finding would be justified only when satisfactorily shown that the witness has no knowledge of any fact material to the issues to be decided at the hearing.

The holding of United States v. Wilkins, supra, that an accused may not subpoena a prosecutrix to a federal preliminary examination “absent an offer of proof that her testimony would negate probable cause” is .considered contrary to the constitutional and statutory rights of citizens of this state and will not be followed in this case. Neither the District Judge in Wilkins nor the appellant has suggested how an accused might go about proving that the testimony of the witness would “negate probable cause” if not permitted to interrogate the witness.

Equally unacceptable is the holding of United States v. Bates, 287 F.Supp. 657 (E.D.Tenn.1968), cited by appellant, that an accused may be denied the presence of a material witness merely because the magistrate conceives that the witness is called solely for discovery. The opinion in Bates does not state the evidentiary grounds for the magistrate’s finding. Absent satisfactory evidence that the witness possessed no knowledge of facts material to the issue to be decided, the decision in Bates is contrary to the concept of this Court of the rights of Tennessee citizens, and will not be followed.

Likewise, in United States v. Hinkle, 307 F.Supp. 117, D.D.C., 1969, cited by appellant, the accused was prevented from cross examining the government’s witnesses outside the scope of direct examination under the limited scope of cross examination in federal courts (Federal Rule of Evidence 611[b]), whereas the “wide open” rule of cross examination is recognized in Tennessee. Ray v. Hutchison, 17 Tenn.App. 477, 68 S.W.2d 948 (1933).

Also, the Hinkle opinion states:

“The defendant had every opportunity to call other witnesses had he desired to do so.”

The accused in the present case was denied such opportunity.

Appellant insists that the accused is “attempting to require the State to produce all its witnesses . . . ” As previously stated, neither party owns any witness. The accused is not attempting to require the prosecution to produce anything or anybody. The prosecution is seeking to prevent the accused from producing (by subpoena) evidence in his own defense.

Appellant states correctly that the prosecution is not required to present its entire case at a preliminary hearing, but appellant apparently misconceives the meaning of “entire case.” The words do not import any special claim upon any particular witness or evidence as part of the “case.” The words simply describe those. witnesses and that evidence which a party intends to present at a trial. The same witnesses or evidence are equally available to the accused if and when he chooses to present them in his own defense.

Holt v. State, Okl.Cr.App.1973, 506 P.2d 561, and State v. Williams, 27 Ariz.App. 279, 554 P.2d 646 (1976), cited by appellant, are not in accord with Tennessee law to the extent that they purport to deny +o the accused the right to “wide open cross examination” as to any matter material to the issues to be determined at the hearing.

This Court does not agree with appellant’s proposition, supported by People v. Scott, N.Y.City Crim.Ct.1976, 393 N.Y.S.2d 294, that it is necessary for the accused to show that evidence would negate probable cause in order to have the benefit of subpoena for it. The rule, as previously stated, is the unlimited right of subpoena limited only by authority to quash upon a showing (by the objector) that the witness has no information material to the issues or that the evidence sought is equally immaterial.

Finally, appellant insists, citing Hinkle, supra, that the accused has no right to inquire of witnesses as to the names and addresses of other suspects. To the extent that evidence connecting others to the offense charged would reduce the probability of guilt of the accused, he is entitled to present same to the Juvenile Judge. The Juvenile Judge is empowered to rule upon the propriety of such questions as they do or do not reflect directly upon probable guilt of the accused and/or credibility of witnesses.

This Court is not unaware of the probable results of this decision in the present case and in similar cases before the Juvenile Courts as well as preliminary hearings of charges against adults in General Sessions Courts. Heretofore, the practice of calling witnesses for the defense in such hearings has not been particularly widespread. Hereafter, the practice may well be extended and enlarged to further occupy the time of courts and prosecutors; but the rights of citizens cannot be denied to avoid inconvenience.

Moreover, the more thorough presentation of evidence at preliminary hearings would tend to disclose weaknesses or strengths in the evidence against the accused to enable the prosecution to make more fully informed decisions as to continuing prosecution, plea bargaining and preparation for trial. The accused will thereby be enabled to make more informed decisions as to plea bargaining and preparation for trial.

Not the least possibility is that the Juvenile or General Sessions Judge may be enabled to render a more informed decision upon the issues before him.

Another possible result is the preservation of evidence for use in event of the unavailability of a witness at the time of trial. This result could be a benefit or detriment to the party presenting the witness at the preliminary hearing, according to subsequent events and the nature of the testimony.

The abuse of the privilege of calling witnesses is, of course, a possibility. However, this possibility in our judicial system is familiar to all participants, and its restraint must depend upon the integrity, common sense and discretion of lawyers and judges — all within the bounds of due process.

The disposition of this appeal is without prejudice to the authority of the Juvenile Judge to exclude any witness or evidence found to be irrelevant subject to the right of the parties to preserve a record of the purpose and/or substance of the witness or evidence excluded. Conlee v. Taylor, 153 Tenn. 507, 285 S.W. 35 (1926); Truslow v. State, 95 Tenn. 189, 31 S.W. 987 (1895); Miller v. State, 206 Tenn. 103, 332 S.W.2d 179 (1959).

The judgment of the Circuit Judge is affirmed. The decree of the Juvenile Court quashing subpoenas issued at the request of the accused is reversed and vacated. The cause is remanded to the Juvenile Court for further proceedings.

Circuit Court Affirmed.

Juvenile Court Reversed.

Remanded to Juvenile Court.

DROWOTA and LEWIS, JJ., concur.