B. E. Dodd & Son v. Nashville, C. & St. L. Ry. Co.

• Decision Date: 18 May 1908
• Parties: B. E. DODD & SON v. NASHVILLE, C. & ST. L. RY. CO.
• Court: Tennessee Supreme Court

110 S.W. 588

120 Tenn. 440

B. E. DODD & SON v. NASHVILLE, C. & ST. L. RY. CO.

Supreme Court of Tennessee.

May 18, 1908

Certiorari to Court of Civil Appeals.

Action by B. E. Dodd & Son against the Nashville, Chattanooga & St Louis Railway Company. Judgment for defendant, dismissing plaintiffs' suit, was affirmed on appeal in the nature of a writ of error to the Court of Civil Appeals; but the suit was dismissed without prejudice. To review the decision of the Court of Civil Appeals, defendant brings certiorari. Reversed and rendered.

J. W Rankins, for plaintiffs.

H. H Barr, for defendant.

BEARD C.J.

This action was begun before a justice of the peace of Weakley county by B. E. Dodd & Son to recover from the Nashville, Chattanooga & St. Louis Railway Company $23 on account of alleged overcharges upon shipments of freight made by the plaintiffs over the road of the defendant. There was trial before the justice of the peace, and judgment in favor of the plaintiffs, from which defendant appealed to the circuit court of the county. The case was there tried by Hon. Joseph E. Jones, without the intervention of a jury, who, no special finding being demanded, found the matters in controversy generally for the defendant, and dismissed the suit of the plaintiffs. From this judgment the plaintiffs prosecuted an appeal in the nature of a writ of error to the Court of Civil Appeals, where the case was heard and the judgment of the trial court affirmed, in terms as follows:

"It is therefore considered by the court that the said judgment of the court below be affirmed, and plaintiffs' case dismissed without prejudice to prosecute another suit for the same cause, and the judgment will so provide."

The case is now before us upon a petition for certiorari, filed by the defendant to review and reverse the action of the Court of Civil Appeals in dismissing plaintiffs' suit without prejudice, and for failure to affirm the judgment of the trial court, finally adjudging that the plaintiffs were not entitled to any recovery against the defendant.

It appears that the Court of Civil Appeals considered the case upon the merits, and was of the opinion that the plaintiffs were entitled to recover of the defendant, but because the bill of exceptions contained no statement to the effect that it embraced all the evidence submitted to the trial judge, the judgment of the circuit court should be affirmed, but without prejudice to the right of the plaintiffs to bring another action, and so adjudged.

We find this in the opinion of that court in the case:

"A question is made in the case in regard to the bill of exceptions, which we will hereafter treat of; but, assuming that all the evidence that was heard in the case is now properly before us, as set out in the transcript, we will now state the case as we find it."

The court then proceeds in an elaborate opinion to discuss the facts which it finds in the imperfect record and the law it considers applicable thereto, and expresses the opinion that the trial judge was in error, and that he should have given a judgment in favor of the plaintiffs. Afterwards the fact that the bill of exceptions does not contain a statement that it embraces all the evidence as stated, and the court concludes that it must, under the well-settled practice in this state, presume that there was evidence submitted in the trial court which supported the finding of the trial judge, and that therefore the judgment must be affirmed. It is then said:

"We therefore feel bound to affirm the decision of the circuit judge, and dismiss the plaintiffs' case; but, believing they have a just cause of action, we think we are justified in directing its dismissal without prejudice to prosecute another suit for the same cause, and the judgment will accordingly so provide."

The petitioner assigns error upon the action of the Court of Civil Appeals in holding that the plaintiffs were entitled to recover upon the claim sued upon, and upon its judgment dismissing the plaintiffs' suit without prejudice to again sue upon the same cause of action.

We are of opinion that both assignments of error are well taken, and they are sustained.

The rule that this court, in the absence of a bill of exceptions or one stating that it contains all the evidence heard upon the trial, will presume that the verdict or finding of the trial judge was supported by the evidence introduced, has, from the earliest days of our jurisprudence, been recognized and uniformly enforced. Indeed, no rule of practice is better...