Hamilton v. Wolfe
| Decision Date | 11 July 1952 |
| Parties | HAMILTON et al. v. WOLFE et al. 30 Beeler 428, 194 Tenn. 428, 250 S.W.2d 910 |
| Court | Tennessee Supreme Court |
Roy C. Nelson, Elizabethton, Hal H. Carr, Blountville, for petitioners.
Stacy J. Grayson, Bristol, for respondents.
An automobile traffic accident resulted in a substantial jury verdict and judgment for respondents against petitioners. An appeal to the Court of Appeals was prayed and granted. Forty-five days were allowed within which to file bill of exceptions. It is conceded that this bill of exceptions was not filed within that time.
Petitioners subsequently filed in the Court of Appeals the record for writ of error. The bill of exceptions was included on the assumption that it was a part of the record.
On motion of respondents, the Court of Appeals struck the bill of exceptions from the record on the theory that this instrument was not a part of that record. It then affirmed the judgment of the lower Court because there were no errors apparent on the face of the record with the bill of exceptions eliminated. All assignments of error were directed to matters embraced within the bill of exceptions to which the Court was not privileged to look unless that bill of exceptions be a part of the record.
It is the insistence of petitioners that 'the bill of exceptions may be filed when the writ of error is granted even though the time for filing would have been late as to an appeal'. They say that unless this insistence is sound, then the right to file the record for writ of error is destroyed in that 'the additional time for filing writ of error is of no practical aid.'
The office of a writ of error 'is to require the inferior Court to send up to the Appellate Court a transcript of the record that errors therein may be corrected'. Cain v. Cocke, 69 Tenn. 288, 289. Of course, anything which is not a part of the record in the inferior court cannot be included.
Therefore, the determinative question here is whether the bill of exceptions not filed within the time allowed by the order of the trial court, though filed later, is a part of the record in the trial court. If it is not then it cannot be included in the record sent up.
One reason a limit is fixed upon the time within which a bill of exceptions may be made up and filed is 'that with the lapse of time the impression made on the memory of the judge becomes more faint, and his recollection less reliable as to the evidence deposed...
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Simmons v. State
...precedence for the conclusion that we are forced to reach of why we cannot consider a case on its merits. See also Hamilton v. Wolfe, 194 Tenn. 428, 250 S.W.2d 910. The motion of the State thus will have to be A highway patrolman searched an automobile upon one of the State highways and fou......
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McLaughlin v. Broyles
...allowed by order of the court is mandatory. Code 1932, Sec. 8820; Fletcher v. Russell, 27 Tenn.App. 44, 177 S.W.2d 854; Hamilton v. Wolfe, Tenn.Sup., 250 S.W.2d 910, 911. This question was before our Supreme Court in the recent case of Hamilton v. Wolfe, supra, in which the Court 'A bill of......
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Rowan v. Inman
...the Chancellor properly sustained the plea in abatement to the bill. Fine v. State, 183 Tenn. 117, 191 S.W.2d 173, and Hamilton v. Wolfe, 194 Tenn. 428, 250 S.W.2d 910. So, in determining whether the Chancellor erred in holding that his Court was without jurisdiction (viewing it in the ligh......
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Braden v. Clark
...writing was not filed until July 6, 1957 it is ineffective as a bill of exceptions and cannot be considered on appeal, Hamilton v. Wolfe, 194 Tenn. 428, 250 S.W.2d 910, if otherwise it were competent for The ineffectiveness of this writing as a bill of exceptions is emphasized solely becaus......