Cantrell v. Dekalb County Beer Bd.

• Decision Date: 05 March 1964
• Citation: 17 McCanless 568,376 S.W.2d 480,213 Tenn. 568
• Parties: Ernest P. CANTRELL v. DeKALB COUNTY BEER BOARD. 17 McCanless 568, 213 Tenn. 568, 376 S.W.2d 480
• Court: Tennessee Supreme Court

Page 480

376 S.W.2d 480

Ernest P. CANTRELL v. DeKALB COUNTY BEER BOARD.

17 McCanless 568, 213 Tenn. 568, 376 S.W.2d 480

Supreme Court of Tennessee.

March 5, 1964.

Millard Oakley, Livingston, for applicant.

McAllen Foutch, Smithville, for DeKalb County Beer Board.

DYER, Justice.

In this opinion Ernest P. Cantrell will be referred to as, Applicant and the DeKalb County Beer Board, as the Board.

On 11 May 1962 Applicant, under Sections 57-201 through 57-223, T.C.A., filed application with the Board for a permit to sell beer. The Board, after a hearing, denied the application. On 20 September 1962 applicant filed a petition in the Chancery Court, under Section 57-209, T.C.A. to review this action of the Board. The Chancellor finding Applicant had complied with the law in every respect reversed the action of the Board ordering the permit issued. The Board has appealed.

Applicant on 18 October 1963 filed in this Court a motion to dismiss the appeal on the ground more than 87 days has elapsed, since this appeal has been perfected and no transcript has been filed in this Court, within 40 days, as required by Rule 6 of this Court. The motion for a new trial was overruled on 29 June 1963. The Board filed, with the Clerk and Master, their bill of exceptions on 19 July 1963 and bond on 22 July 1963. The transcript was filed in this Court on 28 October 1963.

In Turner v. South Pittsburg Lumber and Coal Company, 14 Tenn.App. 297 (1931) the Court said:

'In the case of Ransom v. Carlisle, 8 Tenn.App. 448, 451, it was held by this court, upon a review of the published opinions of our Supreme Court on the subject, (1) that practically from the beginning of the judicial history of this State it has been the rule that if the appellant failed to bring up the record on appeal within the time provided by law, the appellee may bring it up and have an affirmance of the judgment or decree; (2) that this practice is based on the theory that the appellant by his failure to have the record filed in the appellate court, has abandoned his appeal; (3) that the failure of the appellant to have the record brought up in due time is sufficient evidence that he has abandoned his appeal, and will justify an affirmance of the judgment on the appellee's motion, unless the appellant appeal and show that the failure to file the record was due to causes over which he had no control, and had occurred without culpable negligence on his part, and that he had no intention of abandoning his appeal; and (4) that in the absence of a showing of such 'good cause' by the appellant, the appellee who brings up a record on appellant's failure to do so seasonably, is entitled to an affirmance as a matter of course. 14 Tenn.App. at 298-299.'

The Board has filed a motion to strike the motion to dismiss and attached affidavits by the Clerk & Master and by their Solicitor of record. We are satisfied, from these affidavits, the failure to transmit the record within the required time was not due to any negligence on the part of the Board or their Solicitor, but was due to causes over which the Board and their Solicitor had no control. The motion to dismiss is overruled.

The Board filed a demurrer, incorporating it in their answer, as required by Section 27-910, T.C.A. There was no action taken upon the demurrer and the cause proceeded to a hearing upon the merits. Since the demurrer was not disposed of prior to the hearing on the merits, then it is deemed to be waived. Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981 (1919); Boyd v. Sims, 87 Tenn. 771, 11 S.W. 948 (1889). This is true even though the demurrer by statute is required to be incorporated in the answer. The assignment of error directed to this matter is overruled.

In Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260 (1962) this Court speaking through Mr. Justice Felts gave an exhaustive review of the nature of a court review of the actions of county beer boards, under Sections 57-205 and 57-209, T.C.A.

Prior to the passage of Chapter 105, Public Acts of 1961, amending Sections 57-205 and 57-209 T.C.A., the scope of review of the actions of a beer board was limited to a common law writ of certiorari, which limited the review to examination of the transcript of the proceedings made before the beer board, with a determination to be made whether the board had acted...