Citizens' Nat. Life Ins. Co. v. Witherspoon

• Decision Date: 29 March 1913
• Citation: 155 S.W. 139,127 Tenn. 363
• Parties: CITIZENS' NAT. LIFE INS. CO. v. WITHERSPOON.
• Court: Tennessee Supreme Court

155 S.W. 139

127 Tenn. 363

CITIZENS' NAT. LIFE INS. CO. v. WITHERSPOON.

Supreme Court of Tennessee.

March 29, 1913

Certiorari to Court of Civil Appeals.

Action by William Witherspoon against the Citizens' National Life Insurance Company.From a judgment of the circuit court affirmed by the Court of Civil Appeals, defendant brings certiorari.Writs of certiorari and supersedeas granted judgment of the Court of Civil Appeals reversed, and suit dismissed.

Robin J. Cooper, of Nashville, for plaintiff in certiorari.

Harry S. Stokes, of Nashville, for defendant in certiorari.

BUCHANAN J.

In the transcript in this case there is a paper purporting to be a finding of facts by the trial judge.It shows the correct style of the cause, and the court in which it was pending and the day on which the paper was filed.After all of the above is made to appear, these words follow:

"At the trial of this cause the defendant requested a written finding of facts by the court, and the same is herewith made."

Then follow the finding of facts and the conclusions and decision thereon, covering pages 3 to 11 of the transcript, and it is duly signed by the trial judge.The date on which this paper was filed in the office of the clerk of the trial court is the same as the date of a minute entry which shows the overruling of the insurance company's motion for a new trial, and the granting to it of an appeal from the judgment of the trial judge, who disposed of the case without the intervention of a jury.This minute entry is dated July 10, 1912, and recites in its opening sentence:

"This cause came on to be heard on this the 9th day of July, 1912, upon the motion of the defendant for a new trial," etc.

The minute entry preceding this in the transcript shows that the cause was heard and judgment rendered in favor of plaintiff on July 5, 1912.It is insisted for Witherspoon that, in the above state of the record, the paper purporting to be a finding of facts is not in compliance with section 4684 of Shannon's Code, which provides that:

"Upon the trial of a question of fact by the court, the decision, if requested by either party, shall be given in writing, stating the facts found and the conclusions thereon, which shall constitute a part of the record."

We do not agree with the Court of Civil Appeals in its holding that the record does not show sufficient compliance with section 4684, supra.By that section, when either party requests the written finding, and it is made and signed by the trial judge, and filed, it becomes a part of the record by force of the statute.The signature of the trial judge identifies it, and its recital that it was made upon or at the trial at the request of one of the parties to the suit is sufficiently verified by the signature of the trial judge.

We cannot agree with the Court of Civil Appeals that there is any presumption that the trial judge was not requested in this case to reduce his findings to writing until after the motion for a new trial was made and disposed of, because the contrary is clearly stated in the finding over the signature of the trial judge.He says it was requested "at" the trial, and we think the word "at," so used by the trial judge, has the same meaning as the word "upon" in section 4684, Shannon's Code.

If the finding was requested either "at" or "upon" the trial, it was certainly requested before the decision of the court or rendition of judgment.

In Parham v. Gibbs, 16 Lea, 296, the request was made two days after the trial, and this court held that it came too late, and said the request should have been made upon the trial.

In Stanley v. Donoho, 16 Lea, 495, the request was made before the rendition of judgment, and so was held to have been seasonably made, and this court said the statute was imperative, and reversed that case because of the failure of the circuit judge to comply with the request, and because it could see that the justice of the case required that course.To the same effect is McHale v. Wellman,101 Tenn. 152, 46 S.W. 448.

In Stephens v. Mason,99 Tenn. 513, 42 S.W. 143, the finding relied on recited in its introductory sentence that it was requested "after judgment," and it was held to have come too late, and the suggestion was there made that it would be well for special findings to be made at the commencement of the trial.

In Railroad v. Foster,112 Tenn. 346, 80 S.W. 585, the finding was requested upon the trial.It was made, signed by the trial judge, and filed.No bill of exceptions was filed, and it was held there that no bill of exceptions in such case was necessary in order to challenge the correctness of the conclusions of law reached by the trial court upon the facts as found in the writing as signed by him, and thereafter filed, and it was there held, as we hold here, that such written finding, if authenticated by the signature of the trial judge, and upon being filed in the cause, becomes part of the record by operation of the statute.If it had been intended that it should be authenticated further by a minute entry or bill of exceptions, the statute would have been so written.

We think the finding of facts, when authenticated and identified by the signature of the trial judge, appearing in a transcript duly certified by the clerk of the trial court, may, by its own recitals, sufficiently testify to the fact that it was seasonably requested; that is to say, at or upon the trial of the cause, and before decision thereof and judgment thereon.For a discussion of the requisites and defects of such findings, seeHinton v. Insurance Co.,110 Tenn. 130-131, 72 S.W. 118.

But it is urged that we should hold the finding of facts not to be a part of the record, because it was not filed until after the date when the judgment was rendered and the motion for a new trial was overruled.The answer to this point is that the finding was filed during the term at

which the case was tried, judgment was rendered, and the motion for a new trial was considered and overruled.

The statute(section 4684, Shannon's Code) does not require the finding to be filed during the trial, nor before entry...