Chambers v. Holland
| Decision Date | 28 February 1975 |
| Citation | 524 S.W.2d 941 |
| Parties | Sammy CHAMBERS, Plaintiff-Appellant, v. Mae HOLLAND, Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
J. M. Clement, Jr., Dickson, for plaintiff-appellant.
Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for defendant-appellee.
The plaintiff, Sammy Chambers, has appealed from a jury verdict and judgment dismissing his suit against the defendant Mac Holland, for personal injuries sustained in an automobile mishap.
The appellee has moved to dismiss the appeal on three grounds.
First, appellee insists that the appeal bond was not timely filed.
On August 28, 1973, the Trial Judge entered an order overruling plaintiff's motion for a new trial, granting an appeal and allowing 30 days for perfecting the appeal.
On September 26, 1973, the Trial Judge entered an order providing:
'It is hereby ordered, that plaintiff be allowed sixty additional days to file his bill of exceptions and perfect his appeal.'
On November 10, 1973, plaintiff filed his appeal bond.
§ 27--312 T.C.A. provides in part as follows:
In Paris v. Browning, 55 Tenn.App. 92, 396 S.W.2d 367 (1965) it was held that appellate courts are without authority to permit the filing of a bond after the expiration of the time allowed by the foregoing code section.
In Wright v. Dorman, 155 Tenn. 189, 291 S.W. 1064 (1927) and England v. Young, 155 Tenn. 506, 296 S.W. 14 (1927) it was held that the statutory time limit is mandatory.
Even though the order of the Trial Judge, supra, undertook to grant an extension of 60 days for perfecting appeal, the order was ineffective to extend the time for appeal more than an additional 30 days. Thus, at most, the plaintiff was allowed for the filing of his appeal bond a total of 60 days from August 28, 1973 which expired prior to the filing of the bond on November 10, 1973. Chattanooga Coca Cola Co. v. Disbrow, 60 Tenn.App. 381, 447 S.W.2d 107 (1969).
The motion to dismiss the appeal must therefore be sustained. This, however, is not necessarily determinative of plaintiff's right to appellate review.
In Chumbley v. Duck River Electric Membership Corp., 203 Tenn. 243, 310 S.W.2d 453 (1957), there was no prayer for or order granting appeal, but an appeal bond was in the record. The Supreme Court considered the matter as upon writ of error, citing Gibson's Suits in Chancery, Fifth Edition, § 1344.
In Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134 (1962) the Supreme Court held that where an appeal or appeal in the nature of writ of error has not been perfected because of failure to file appeal bond in due time, writ of error lies as a matter of right.
In City of Paris v. Browning, 55 Tenn.App. 92, 396 S.W.2d 367 (1965) this Court dismissed an appeal for failure to file any appeal bond or pauper's oath, but declined to affirm the judgment of the Trial Court because the time for proceeding by writ of error had not expired.
In Sanders v. Loyd, 51 Tenn.App. 49, 364 S.W.2d 369 (1960), this Court found that the appeal bond had not been timely filed, but said:
51 Tenn.App. p. 51, 364 S.W.2d p. 370.
On the basis of the preceding authorities, this cause will be retained and disposed of in this Court as upon writ of error.
Defendant also moves to dismiss the appeal because the bill of exceptions was not timely filed. It was filed on November 21, 1973.
The extension order, supra, allowed an extension of 60 days for filing the bill of exceptions. In this regard, the action of the Trial Judge was within his statutory power, and the time for filing the bill of exceptions was thereby extended to 90 days. If measured from August 28, 1973, this period would include November 21, 1973, the date of filing the bill of exceptions.
Appellee insists that the initial, statutory time for filing bill of exceptions (and for extension of time by the Trial Court) is not computed from the date of the order overruling the motion for a new trial, but rather from the date of final judgment, excluding the time when motion for new trial was pending. § 27--110 and § 27--111 T.C.A. provide in pertinent part as follows:
In this cause, the judgment was entered on April 23; and the motion for new trial was filed on May 18, twenty-five days later. Therefore, under appellee's insistance, only five of the statutory thirty days remained at the time of the filing of the motion for new trial, and the same five days remained at the time of overruling of the motion for new trial on August 28, 1973. Thus, under appellee's insistance the last day for filing bill of exceptions or obtaining an extension was September 2, 1973; and 60 days thereafter, to November 1, 1973, was the maximum extension which might be granted.
Prior to the 1950 Supplement to the Code the time for filing a bill of exceptions was measured from 'the date of the court's action upon said motion (for new trial).' § 8822, Code of 1932. Since the 1950 Supplement (§ 8820 thereof), the wording has been, 'from the entry of the order or action of the court which occasioned the filing of said bills of exceptions' or 'from the date of final judgment.'
Under the former (pre-1950) law, the time was unquestionably measured from the day of overruling the motion for a new trial. Chattanooga-Dayton Bus Line v. Burney, 160 Tenn. 294, 23 S.W.2d 669 (1930).
In Waller v. Skelton, 31 Tenn.App. 103, 212 S.W.2d 690 (1948) this Court said:
'. . . It also appears that defendants' motion for a new trial was filed November 6, 1946, within 30 days from the entry of the judgment on October 30, and within the trial term. So this motion was seasonably filed.
(Citing Authorities)
Thus, even under the former (pre-1950) wording of the statute, the order overruling the motion for new trial was regarded as the final judgment.
In Norris v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1958) this Court said:
'(3) However, even if we could consider the stipulation and decree, it would still fail to cure the defect, because the order purports to grant an extension of 20 days in which to file and have approved a bill of exceptions, which order, on its face, was entered More than 30 days after the motions for new trial were overruled in these cases.' 45 Tenn.App. p. 107, 320 S.W.2d p. 733). (Emphasis supplied)
Thus, after the 1950 change in wording, this Court recognized that the order overruling the motion for new trial was the 'order or action of the court which occasioned the filing of said bill of exceptions.'
In Railroad v. Ray, 124 Tenn. 16, 28, 134 S.W. 858, 860 (1910) the Supreme Court said:
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...v. Everett, 150 Cal.App.3d 1053, 201 Cal.Rptr. 351 (1984); Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983); Chambers v. Holland, 524 S.W.2d 941 (Tenn.App.1975); Lisowski v. Milwaukee Automobile Mut. Ins. Co., 17 Wis.2d 499, 117 N.W.2d 666 (1962). The rule is considered to be a policy r......
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...court, mistakes may be corrected by the Trial Court only with leave of the appellate court. On the authority of Chambers v. Holland, (Tenn.App.M.S.1975), 524 S.W.2d 941, and Jerkins v. McKinney, (Tenn.1976), 533 S.W.2d 275, we hold that the Bill of Exceptions was timely filed and the motion......