Findlay v. Monroe
| Decision Date | 23 July 1954 |
| Citation | 32 Beeler 690,270 S.W.2d 325,196 Tenn. 690 |
| Parties | , 196 Tenn. 690 FINDLAY v. MONROE. |
| Court | Tennessee Supreme Court |
Henry C. Foutch, Asst. Atty. Gen., for plaintiff in error.
Sidney Davis, Clinton, for defendant in error.
The subject of this suit is a Cadillac automobile seized as contraband property by a conservation officer of our Game and Fish Division on the ground that there was being transported in that automobile a deer which had been illegally killed, Chapter 115, Public Acts of 1951, Sections 42 and 45, respectively, Williams Code Supplement at Sections 5178.71 and 5178.74. Mrs. Monroe, defendant-in-error, is the wife of Verlie Monroe who was driving this automobile at that time. He was subsequently convicted for the illegal possession and transportation of this deer. Monroe v. State, 194 Tenn. 519, 253 S.W.2d 734. Mrs. Monroe was the owner of this automobile.
The object of Mrs. Monroe's suit is to procure the restoration to her of this automobile. She first presented Findlay, Director of the State Game and Fish Division, a timely petition for its return.
After a hearing, the director denied the petition. Then, Mrs. Monroe filed in the Circuit Court of Anderson County a petition for the common law writ of certiorari for which Section 45 of this 1951 statute provides. Williams Code Supplement 5178.74. After Findlay, director, made his return to the writ by filing in the Circuit Court a transcript of the proceedings had before him, the director, the Circuit Judge rejected every insistence of Mrs. Monroe with the exception of the one hereinafter discussed, and by reason of which one he sustained her petition and directed the return of the automobile to Mrs. Monroe. The director has appealed.
There is a motion to dismiss the director's appeal on the ground that he did not comply with the Court's requirement for an appeal bond and bill of exceptions.
This is an appeal, in effect, by the State through one of its officials as to a matter in which the State is exercising a governmental function. In that situation no appeal bond may legally be required of the State. State Highway Department v. Mitchell's Heirs, 142 Tenn. 58, 69, 216 S.W. 336.
By Section 8820 of the Code Supplement a motion for a new trial becomes a part of the record without the necessity of being included in a bill of exceptions. Such motion is in this record.
The findings of fact were embodied in an opinion signed by the Judge and filed in the cause. It thereby became a part of the record without being incorporated in a bill of exceptions. Nashville, C. & St. L. Ry. Co. v. Smith, 147 Tenn. 453, 455, 249 S.W. 377.
Where there is no bill of exceptions it will be presumed on appeal that the evidence supports the facts as found by the Trial Judge in his signed and filed opinion. Dodd & Son v. Nashville, C. & St. L. Railroad Co., 120 Tenn. 440, 445, 110 S.W. 588. This, of course, does not mean that the conclusions of law which a Trial Court reaches from that finding of fact must be assumed to be correct.
Since the technical record, including these findings of fact, is sufficient to decide the determinative question made by this appeal, the motion to dismiss will be disallowed.
However, this disposition of appellee's motion is not to be construed as a holding that the certified proceedings before the Director filed in the Circuit Court as a part of his return to the writ for certiorari may not be considered a part of the record unless incorporated in a bill of exceptions. That question is pretermitted, because unnecessary to a decision of this case, with the aside observation that in this case, involving the common law writ of certiorari, the holding as to bill of exceptions in Hoover Motor Express Company v. Clements Paper Company, 193 Tenn. 6, 241 S.W.2d 851, involving the statutory writ of certiorari, is not necessarily applicable.
The authority of the director by virtue of the 1951 Act to confiscate this automobile, if he follows the requirements of that statute, is conceded by the appellee. The Trial Court found that the director did not comply with the requirements of the statute in fixing the date for the hearing of Mrs. Monroe's petition. It is the legal accuracy of this holding that the State questions.
Consideration of the question should be had in the light of the particular facts surrounding the fixing of the date for the hearing of Mrs. Monroe's petition. In this...
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Bearman v. Camatsos
...of the trial judge.' Pratt v. Gillespie, 97 Tenn. 217, 36 S.W. 1097; Freeman v. Freeman, 197 Tenn. 75, 270 S.W.2d 364; Findlay v. Monroe, 196 Tenn. 690, 270 S.W.2d 325. When two wills are offered for probate and the applications are consolidated, submission of both for determination as to w......
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James v. State
...v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1958); McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956); Findlay v. Monroe, 196 Tenn. 690, 270 S.W.2d 325 (1954). The only new matter presented in this petition is the contention that plaintiffs in error were denied 'due process' and ......
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Dispeker v. New Southern Hotel Co.
...a question of law which the appellate court may properly review even though no bill of exceptions has been filed. Findlay v. Monroe, supra, 196 Tenn. 690, 693, 270 S.W.2d 325. It is true that in this state a bailee's liability has generally been predicated on negligence rather than breach o......
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J. C. Bradford & Co. v. Martin Const. Co.
...findings of fact of the Chancellor which were included in the technical record pursuant to T.C.A., § 27-113. See Findlay v. Monroe, 196 Tenn. 690, 270 S.W.2d 325 (1953). Thus, the court failed to follow the well settled rule in this State that when no bill of exceptions is in the record it ......