Lancaster's Heirs v. Fisher

• Citation: 28 S.W. 1094,94 Tenn. 222
• Parties: LANCASTER'S HEIRS v. FISHER.
• Decision Date: 05 January 1895
• Court: Supreme Court of Tennessee

28 S.W. 1094

94 Tenn. 222

LANCASTER'S HEIRS v. FISHER.

Supreme Court of Tennessee.

January 5, 1895

Appeal from circuit court, Smith county; W. T. Smith, Judge.

Action by J. D. Fisher against M. Lancaster's heirs. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Turner & Smith, for appellants.

T. J Fisher, for appellee.

BEARD J.

This cause was tried by the circuit judge, without the aid of a jury. It is unnecessary to state the facts, as the record presents but one question of any interest, and that is one of correct practice in the court below. There was no motion for a new trial made in that court, and the defendant in error (the plaintiff below) now insists that, in any event, the action of the trial judge would be conclusive, from the failure of the plaintiff in error to make this motion in the circuit court, and to have it there acted upon. In other words, the position assumed is that this court, on appeal applies the same rule in cases submitted to the trial judge without the intervention of a jury as in those which are tried by a jury, and that in all alike, to put the circuit judge in error, there must have been a motion for a new trial, and the record must show that this motion was overruled. As the argument of the counsel in this case, as well as suggestions made by counsel in other cases, indicates some misapprehension on this subject, we deem it best to announce here distinctly what is the rule in this state.

It is assumed by the defendant in error that the cases found in 4 Cold. 405, 2 Lea, 397, 13 Lea, 239, and 91 Tenn. 376, 23 S.W 140, sustain his position. This being so, it becomes necessary briefly to examine them. Wells v. Moseley, 4 Cold. 402, was a jury case. In that case there was no motion for a new trial, but on appeal this court reversed and remanded it, for errors of law committed by the court below, which were apparent on the face of the record, and which affected the merits of the controversy. In course of the argument made against the insistence of the defendant in error,-that, in the absence of such a motion, there could be no reversal for any cause,-this court makes the proper and evident distinction between a case where errors of law apparent are complained of and a case in which the action of the jury on the facts is the ground of objection, and says in this latter case: "This court cannot reverse the judgment and grant a new trial, unless the court below had been asked to correct the error, and had refused to do so. And in such case the refusal of the court to set aside the verdict, and grant the new trial, is the error for which this court will reverse." The authority of this case, so far as the rule in question is concerned, is by its express terms, as well as upon well-settled principles, to be confined to cases in which jury trials have taken place. There is nothing in the opinion to indicate that it was the purpose of the court to give it wider scope. Mumford v Railroad Co., reported in 2 Lea, 394, was tried by the circuit judge, sitting without a jury. In the course of the opinion of this court, it is said, in passing: "No motion having been made in the court below for a new trial, if there had been a jury, there could be no error assigned upon the facts; and we take it the same rule must be held to apply when a jury is waived, and the judge acts both as judge." Whether the point had been presented in argument of counsel, or whether it was a suggestion of the learned judge made of his own motion, does not appear. However made, it evidently had received no serious consideration, and a judgment upon it was in no way essential to the determination of the case. Without regard to what would be the proper rule in a nonjury case, where the error complained of was one of fact, in the case then being considered the court found apparent on the face of the record errors of law, and for these alone it reversed the judgment of the court below. The expression above quoted, and which defendant in error relies on in support of his position, being unnecessary to the decision of the case, was a mere dictum, and of no binding authority. In Morgan v. Bank, 13 Lea, 234, there is found...