Bostick v. Thomas
Decision Date | 10 February 1917 |
Citation | 191 S.W. 968 |
Parties | BOSTICK v. THOMAS. |
Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Action between A. G. Bostick and J. I. Thomas. There was judgment for defendant, and plaintiff appealed to the Court of Civil Appeals, which affirmed, and plaintiff petitions for certiorari. Petition denied.
J. C. Eggleston and W. J. Smith, both of Franklin, for plaintiff. E. M. Hearn, of Franklin, and R. L. Morris, of Nashville, for defendant.
The petition for certiorari in this case is denied because the petitioner failed to make a motion for a new trial in the court below.
The case was tried before a jury, and pending the trial the defendant below moved the court to direct a verdict in his favor. This motion was disallowed, and the case was submitted to the jury, which returned a verdict for the plaintiff. After this verdict was returned the defendant moved the court to grant him a new trial, and, among other things, assigned as grounds therefor the refusal of the trial judge to grant his motion for a directed verdict. After consideration of the motion for new trial, the court concluded that he was in error in not directing a verdict for defendant, and thereupon granted a new trial, and directed that verdict and judgment be entered for the defendant below. The plaintiff below did not make a motion for a new trial after the foregoing action by the trial judge, but appealed to the Court of Civil Appeals.
A motion for a new trial is necessary to test the correctness of the action of the trial judge in allowing or disallowing a motion for peremptory instructions. Seymour v. Railroad, 117 Tenn. 102, 98 S. W. 174; Barnes v. Noel, 131 Tenn. 131, 174 S. W. 276. Everything which occurs in the progress of the trial and which must be preserved by bill of exceptions must be made the basis of a motion for new trial if complaint is made thereof upon appeal. Railroad v. Ray, 124 Tenn. 28, 134 S. W. 858, Ann. Cas. 1912D, 910; Jacks v. Lumber Co., 125 Tenn. 127, 140 S. W. 1066.
If the trial judge upon the consideration of the motion for new trial deems that he erroneously denied a motion for a directed verdict, it is his duty in considering the motion for new trial to correct such error and direct a verdict. Barnes v. Noel, supra. When such action is taken by the trial judge, the appeal is not from his act awarding the new trial, because such action is not final, and therefore not appealable; but the appeal is from the...
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