Anderson v. Carter
| Decision Date | 29 March 1974 |
| Citation | 512 S.W.2d 297 |
| Parties | Joe F. ANDERSON, d/b/a Anderson Funeral Home, Plaintiff-Appellee, v. Halbert CARTER, Jr., Commissioner of Insurance and Thos. H. Lawrence, et al., Tennessee Board of Funeral Directors and Embalmers, Defendants-Appellants. |
| Court | Tennessee Court of Appeals |
Kirk C. Waite, Nashville, Charles H. McWherter, Martin, for plaintiff-appellee.
William B. Hubbard, Asst. Atty. Gen., Nashville, for defendants-appellants.
On November 12, 1971, The Tennessee Board of Funeral Directors and Embalmers (hereafter called 'the Board') found Joe F. Anderson and Anderson Funeral Home guilty of fraudulently collecting a $500.00 insurance claim check and revoked the funeral establishment license of Anderson Funeral Home, effective November 22, 1971. No other punitive action was taken against Joe F. Anderson individually.
On December 10, 1971, Joe F. Anderson d/b/a Anderson Funeral Home filed in the Chancery Court a petition for the writs of certiorari and supersedeas naming as defendants the Commissioner of Insurance and others constituting the Board.
The decree of the Chancellor states:
'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the charges against Joe F. Anderson d/b/a Anderson's Funeral Home be and the same hereby are dismissed and the petition for certiorari is sustained.'
From said decree, the Board has appealed.
Initially, this Court must consider the following motion of the appellee:
'Comes the Appellee, Joe F. Anderson, d/b/a Anderson Funeral Home and moves the Court to strike from the record the bill of exceptions heretofore filed by the Appellants on the ground that counsel for the Appellants failed to give notice to counsel for the Appellee of the filing of the bill of exceptions as required by T.C.A. 27--110.
'Even though notice is certified on said bill of exceptions, no notice in fact was given and the Appellees' right to object to the contents of the bill of exceptions has trherefore been Prejudice requiring said bill of exceptions to be stricken from the record.'
§§ 27--109, 27--110, T.C.A. read in pertinent part as follows:
'The lodging of said bill of exceptions or wayside bill of exceptions with the clerk of the trial court within the time allowed, along with certification by the filing party showing notice of such filing to all other interested parties shall complete the process of filing.
'Any party not certifying approval of said bill of exceptions or wayside bill of exceptions prior to filing may, within ten (10) days of such filing, file with the clerk of the trial court written objections detailing wherein such party questions the accuracy and/or authenticity of the bill of exceptions, and the trial judge shall make such changes in the bill of exceptions or wayside bill of exceptions, if any, as the truth requries.
'The certificate of approval upon said bill of exceptions or wayside bill of exceptions by the trial judge or chancellor and the authentication of the exhibits by the trial judge or chancellor shall be affixed to the bill and the exhibits as soon as practicable after the filing thereof or after the expiration of the aforesaid ten (10) day period, as the case may be, and such action of the trial judge or chancellor shall comprise the requisite authentication.'
At the bar of this Court, counsel frankly informed this Court of the circumstances under which the bill of exceptions was approved by the Chancellor and filed with the Clerk and Master and other pertinent facts. Counsel for appellant stated frankly that he did not notify adversary of the filing of the bill of exceptions--this in spite of the certificate subscribed to the bill of exceptions as follows:
'Certificate of service; I hereby certify that I have given notice to adversary counsel of the filing of this Bill of Exceptions this September 25, 1973.
/s/ William B. Hubbard
William B. Hubbard
Assistant Attorney General'
In order to avoid misquotation or misunderstanding, counsel have been invited to submit their respective versions of the matter in question.
Counsel for appellant submitted the following written statement:
'Counsel stated to this Court that the 'Bill of Exceptions' filed herein was the record of proceedings before the Board. The hearing consisted of this record, the correctness of which was not challenged, argument of counsel and comments of the Chancellor. The constituted all the evidence.
'Counsel stated that in preparation of the appeal, he checked the transcript out of the Court's file, intending to 'lodge' it with the Clerk and Master as provided in the Statute. Pursuant to that aim, he contacted an assistant in the Clerk's office to type the 'Certificate of Service.' The intent was to forward counsel notice that day, as stated in the certificate. The Clerk's office, however, would not accept the transcript because the exhibits were not authenticated. After authenticating the exhibits the Chancellor inquired of counsel if there was any reason why the 'Bill of Exceptions' should not be authenticated. Counsel told the Chancellor that there was no reason in this particular case because the evidence at the court hearing had consisted solely of the record of the Board proceeding.
'Counsel stated that, after authentication, he deemed the objection by adversary would be not only useless but also was waived since the correctness of this record was not raised in open court.'
Counsel for appellee has approved the following summary of his oral statement to the Court:
'Counsel for appellee conceded that the transcript as transmitted to this Court was correct and complete except for the omission of argument of counsel and comments of the Chancellor during the hearing.'
The first question for determination is the meaning and intent of §§ 27-- 109, 27--110, supra. Do said sections imply that the judge or chancellor may approve a bill of exceptions ex parte without notice to the appellee, thereby closing the door to any effective presentation of appellee's objections to the content of the bill of exceptions? From a reading of § 27--110, it would appear that such is not the present intent or force of the statute. Rather, it would appear that any proposed bill of exceptions which is not approved by all parties should be lodged with the Clerk and retained by him during the period of required notice. Under such circumstances, any approval by the judge prior to the expiration of the period of required notice would be at most tentative and subject to his power and duty to order corrections in response to exceptions duly filed.
As stated in Anderson v. Sharp, 195 Tenn. 274, 259 S.W.2d 521 (1953) the settlement of a bill of exceptions is a high judicial function. Due process in the exercise of such a function would certainly include the reasonable opportunity of all interested parties to be heard. Undoubtedly, this was and is one of the purposes of the most recent amendment of § 27--110, supra.
In the present case, however, this Court is faced with the unequivocal statement in the certificate of the Chancellor and the admission of counsel in open court that the transcript from the Board was all of the evidence presented at the trial. No insistence is made of any error or omission except that of the argument of counsel and comments of the Court, and no insistence is made that any part of said argument or comments is material to this appeal. The transcript of proceedings before the Board is composed of two well-bound volumes the concluding one of which bears the following authentication by the Chancellor:
'This is all the proof in the cause of ANDERSON VS. CARTER, ET AL, Rule No. A--1109.
/s/ Ben H. Cantrell
CHANCELLOR'
Each of said volumes is marked filed by the Clerk and Master, however neither bears any certification by anyone acting for the Board.
For proper authentication, the entire record before the board should have been bound in a single volume and duly certified by an official of the board, or, if separately bound, the separate parts should have been separately authenticated with a general certificate covering the entire transcript.
The transcript of the Board might have been transmitted to this Court as in the case of Roberts v. Knoxville Transit Lines, 36 Tenn.App. 595, 259 S.W.2d 883 (1952).
For transmission as a bill of exceptions, it should have been lodged with the Clerk prior to final certification by the Chancellor and his final certification should have been delayed to allow appellee ten days after notice to object.
Since the requisite...
To continue reading
Request your trial
-
Cornpropst v. Sloan
...the court for leave to file a Bill of Exceptions incorporating these matters into the record. The court, relying upon Anderson v. Carter, 512 S.W.2d 297 (Tenn.App.1974), and over the objection of counsel for plaintiff, entered an order granting permission to file this so-called bill of exce......
-
Robertson v. Tn Bd. of Soc. Worker Certifi.
...to how much weight [it] should be given.'" State v. Smith, 24 S.W.3d 274, 280 (Tenn.2000) (citation omitted); Anderson v. Carter, 512 S.W.2d 297, 306-07 (Tenn.Ct.App.1974). An administrative tribunal, like a trial court, must be given the opportunity to correct procedural errors. McClellan,......
-
Nixon v. City Of Murfreesboro
...weight of evidence. See Case v. Shelby County Civil Serv. Merit Bd., 98 S.W.3d 167, 176 (Tenn. Ct. App. 2002); Anderson v. Carter, 512 S.W.2d 297, 306 (Tenn. Ct. App. 1974). Moreover, the hearing officer stated in his opinion that "no weight was given to any alleged incidents of impairment ......
-
Morris v. Clarksville-Montgomery County Consol. Bd. of Educ.
...house and that, thereafter, plaintiff became very critical of his band performance and reported him for misbehavior. In Anderson v. Carter, Tenn.App.1974, 512 S.W.2d 297, a funeral director's license revocation case, this Court "Professional Conduct" of a funeral director or funeral home wo......