Dalton v. Dean

• Decision Date: 07 January 1938
• Parties: DALTON v. DEAN.
• Court: Tennessee Court of Appeals

117 S.W.2d 973

22 Tenn.App. 56

DALTON v. DEAN.

Court of Appeals of Tennessee, Eastern Section.

January 7, 1938

Petition for Certiorari Denied by Supreme Court June 17, 1938.

Appeal in Error from Circuit Court, Hawkins County; Shelburne Ferguson, Judge.

Action by J. C. Dean, next friend, against Rue Dalton. Judgment for plaintiff, and defendant appeals in error.

Appeal dismissed and case remanded.

Phillips & Hale, of Rogersville, for plaintiff in error.

Eastman Portrum, of Rogersville, for defendant in error.

LLOYD S. ADAMS, Special Judge.

The defendant below has attempted to bring this case to this Court by an appeal in the nature of a writ of error and pursuant thereto a transcript of the record was filed in this Court on August 25, 1937. On page three of the technical record there appears the minutes of the Circuit Court of Hawkins County for its March term, 1937, pertaining to this case, and from which it appears that on March 4 judgment was entered against plaintiff by default, the suit dismissed and judgment rendered against plaintiff for the costs of the case.

There appears inserted in the record a stipulation signed by attorneys for the respective parties dated September 2, 1937 in which it is agreed that "the order of dismissal found at Page 3 of the transcript was entered through an inadvertence and shall be stricken from the transcript." This is followed by an agreement that the case was tried at the March term 1937, judgment entered for plaintiff and motion for a new trial made, but which through inadvertence failed to "reach the record". What purports to be a true copy of the motion for a new trial and a judgment of the trial court is set forth in the agreement, which concludes as follows: "This agreement shall supplement the transcript and neither party shall take any advantage of the other by reason of the entry of the order vacated or by non-entry of the order above set forth, to the end that the case shall be decided upon its merits."

Although this Court is reluctant to raise a question not being made by attorneys for either party, yet the plight of this record presents a jurisdictional question that challenges the legal right of this Court to review this case, and therefore cannot be ignored.

A motion for a new trial may either be entered on the minutes of the court or be set out in the bill of exceptions, but it must be presented in the record in one of these manners. Otherwise, it forms no part of the record and cannot be considered. Chattanooga Iron & Coal Co. v. Hanssard, 143 Tenn. 553, 226 S.W. 1045. Furthermore, it is imperative that the judgment of the trial court and the action of the court in disposing of the motion for a new trial, and in granting the appeal, should be entered on the minutes of the court and the omission to do so cannot be supplied by a recital in the bill of exceptions nor by agreement of counsel.

The only judicial act of the trial court presented in this record is the judgment of the court dismissing plaintiff's suit and adjudging the costs against him. Before this Court can take jurisdiction there must appear as a part of the technical record a minute entry recording the final judgment of the trial court, the disposition of the motion for a new trial, and an appeal prayed and granted. Jurisdiction cannot be conferred by consent of the parties.

"A recital in a bill of exceptions that an appeal has been granted is not sufficient (Sellars v. Sellars, [17 Pickle, [606], 607] 101 Tenn. 606, 49 S.W. 735). Nor is a statement in an agreement of parties, in the absence of any entry or judicial grant of appeal (Cowan v. Hatcher [Tenn Ch. App.] 48 S.W. 328)." Teasdale & Co. v Manchester Produce Co., 104 Tenn. 267, 269, 56 S.W. 853.

"In a case coming from a court of law, no error can be corrected here except those committed against the party prosecuting the appeal in error or writ of error. State v. Willis , 170 S.W. 1030; Jones v. Ducktown, etc Co., 109 Tenn. 375, 383, 71 S.W. 821; Gallena v. Sudheimer et al., 9 Heisk. 189, 192.

"The stipulation is without effect. Jurisdiction cannot be conferred by consent of parties, and this maxim applies as well to appellate jurisdiction as to original jurisdiction." Barnes v. Noel, 131 Tenn. 126, 134, 174 S.W. 276, 278.

"No recovery or other action may be based on a judgment, nor need any relief from it be sought, until the judgment 'rendered' has been entered, so as to give it binding effect as a judicial act.

"*** a judgment which...