Granert v. Bauer

• Decision Date: 01 July 1933
• Citation: 67 S.W.2d 748
• Parties: GRANERT v. BAUER (two cases).
• Court: Tennessee Supreme Court

67 S.W.2d 748

GRANERT v. BAUER (two cases).

Court of Appeals of Tennessee, Eastern Section.

July 1, 1933.

Certiorari Denied by Supreme Court October 19, 1933.

Appeal in Error from Law Court, Hamilton County; Oscar Yarnell, Judge.

Actions by Virginia Granert, by her next friend, and by Mrs. Orlie Granert against W. Harry Bauer. Judgment for defendant, and plaintiffs appeal in error, and defendant moves to dismiss the appeal.

Motion to dismiss appeal overruled, and judgment affirmed.

H. B. Mack, of Chattanooga, for appellants.

Strang & Fletcher, of Chattanooga, for appellee.

SENTER, Judge.

These two causes were consolidated and heard together by the same jury. The parties will be referred to as in the court below, Virginia Granert, by next friend, etc., and Mrs. Orlie Granert, as the plaintiffs in the respective cases, and W. Harry Bauer, defendant in the respective cases.

The two suits grew out of the same automobile accident. At a former trial there were verdicts in favor of the respective plaintiffs against the defendant, but these verdicts were set aside and new trials granted on the motion of the defendant.

The causes came on to be tried on November 1, 1932, in the circuit court of Hamilton county, resulting in a jury verdict in favor of the defendant in both cases. Both plaintiffs filed motions for a new trial, the same being a joint motion for the two plaintiffs. This joint motion for new trials was overruled and judgments rendered by the trial judge on the verdict of the jury in favor of the defendant in the respective cases. From the action of the court in overruling their motion for a new trial, both plaintiffs prayed an appeal in the nature of a writ of error to this court. The appeal has been perfected and errors assigned.

In this court the defendant, Bauer, filed a motion to dismiss the appeal on the ground that the transcript of the record showed that there was no order made in the lower court for filing plaintiffs' motion for a new trial, or making same a part of the record in this case. Before proceeding to a consideration of the assignments of error, we will dispose of this motion to dismiss the appeal.

It appears from the record that the causes were tried on November 1, 1932, and a minute entry of that date shows that the jury returned a verdict in favor of the defendant. The record shows a minute entry in the respective cases dated November 23, which is as follows:

"The foregoing case came on to be heard upon motion of the plaintiff for a new trial in the above case, and the Court upon the hearing, being of opinion said motion is not well taken, same is hereby in all things overruled and disallowed, to which action of the Court plaintiff duly excepted and prayed an appeal in the nature of a writ of error to the next term of the Court of Appeals, sitting at Knoxville, Tennessee, which is granted upon plaintiff giving bond or otherwise complying with the law as provided for such appeal.

"Upon application plaintiff is allowed thirty days time in which to prepare and file a bill of exceptions and otherwise perfect the appeal."

The motion for a new trial is marked filed November 3, 1932. There does not appear to be a minute entry ordering the filing of the motion. However, it does affirmatively appear from the record and from the above-quoted minute entry that the motion for a new trial, being the joint motion of both plaintiffs, was heard and overruled by the court on November 23, 1932, and within thirty days after the jury verdict and judgment thereon, and during the same term of the court.

It also appears from the bill of exceptions that the joint motion for a new trial is properly contained in the bill of exceptions, and the bill of exceptions duly signed by the trial judge and ordered to be filed and made a part of the record.

This case is therefore to be distinguished from the rule and holding as announced by the Eastern Section of this court in Chattanooga-Dayton Bus Line et al. v. Edythe Lynch, 9 Tenn. App. 129, and the case of Whittaker v. Tenn. Central Ry. Co., 3 Tenn. App. 185. In both those cases it appears that no minute entry was made showing the filing of the motion for a new trial, and in both cases the motion for a new trial was not heard within thirty days after the rendition of the judgment and at the same term of court. Those cases and the cases referred to in the respective opinions proceed upon the theory that, in the absence of a minute entry showing that the motion for a new trial is filed, after thirty days the court is without jurisdiction to enter any order in the case. In the present case the motion for a new trial was heard and disposed of by the trial judge within thirty days from the date of the rendition of the judgment and at the same term of the court.

It results that the motion to dismiss the appeal in the respective cases is overruled and disallowed.

This brings us to a consideration of the consolidated cases upon the assignments of error.

The declaration averred in substance that plaintiffs, with other members of the family, were invited guests of defendant, Bauer, who was the owner and operator of the automobile in which they were riding on a Sunday afternoon pleasure drive; that defendant, while driving the automobile in a careless and negligent manner, overturned the automobile, resulting in the injuries complained of. The defendant filed pleas of not guilty to both declarations.

There is very little, if any, conflict in the evidence. It appears that it was a family party out for a Sunday afternoon drive. The party consisted of Harry W. Granert, and wife, Orlie M. Granert,...