Cooper v. Rosson

• Decision Date: 06 May 1974
• Parties: Mrs. Allene COOPER et al., Appellants, v. Walter ROSSON, Appellee.
• Court: Tennessee Supreme Court

Page 836

509 S.W.2d 836

Mrs. Allene COOPER et al., Appellants, v. Walter ROSSON, Appellee.

Supreme Court of Tennessee.

May 6, 1974.

Joseph L. Lackey, Sr., Nashville, for appellants.

Dwayne D. Maddox, Maddox & Radford, Huntingdon, for appellee.

OPINION

CHATTIN, Justice.

Appellants filed this complaint against appellee seeking an injunction prohibiting appellee from cutting and removing the timber from thirty-three acres of land in which they claimed the fee by virtue of a decree of the Chancery Court of Benton County entered on the 21st day of May, 1936. Appellants, also, sought to have a deed set aside as a cloud on their title to the property whereby W. J. Rosson, Deceased, had attempted to convey the land to appellee.

Appellee has filed a motion to dismiss this appeal for the failure of the appellants to prosecute the same within the time allowed.

The Chancellor tried the case on a stipulation of facts and two exhibits filed thereto. A decree was entered on July 17, 1973, dismissing appellants' complaint.

Appellants prayed and were granted an appeal upon filing an appeal bond within thirty days and preparing and filing a bill of exceptions within ninety days.

Appellants filed an answer to the motion to dismiss the appeal. They admit no bill of exceptions was filed, 'as all the evidence submitted was by stipulation of fact; thus, the record should have been prepared by the Clerk and Master and then filed with the Clerk of the Supreme Court at Jackson.'

The record shows that the appeal bond was filed within thirty days. No bill of exceptions was tendered for authentication by the Chancellor within ninety days or thereafter.

On December 13, 1973, Counsel for appellee filed the motion to dismiss the appeal.

On January 23, 1974, a transcript of the record certified to by the Clerk and Master was filed in this Court.

From the foregoing facts, it is clear we may consider the transcript as filed for writ of error. T.C.A. Section 27--607; Sanders v. Loyd, 51 Tenn.App. 49, 364 S.W.2d 369 (1960).

However, the problem arises as to whether we may consider the facts as set forth in the stipulation of facts since the stipulation was not preserved by inclusion in a bill of exceptions authenticated by the Chancellor nor through the minutes of the court authenticated by the Chancellor.

In nonjury trials, 'if the error involves a ruling on facts presented to the trial judge, it must be preserved in one of two ways, depending upon how the facts were presented: (1) Through the minutes of the Court, authenticated by the trial judge; (2) Inclusion in a bill of exceptions which the trial judge authenticates. One or the other modes of preservation is necessary.' Bryant v. Central Motor Express, 218 Tenn. 542, 404 S.W.2d 513 (1966); Southern Fdy. Supply v. Spang & Co., 225 Tenn. 447, 470 S.W.2d 187 (1971).

In the case of Life & Casualty Insurance Co. v. Gardner, 21 Tenn.App. 244, 108 S.W.2d 1100 (1937), the Court said:

'The question is not reviewable here for the reason that the stipulation of fact was not made a part of the bill of exceptions. It is true the paper is shown to have been filed in the lower court and it appears in the transcript, but it is not a part of the technical record, not having been entered on the minutes, and it is not identified nor authenticated by the trial judge's signature to the bill of exceptions or otherwise. It...