Hinton v. Sun Life Ins. Co.

• Decision Date: 10 January 1903
• Citation: 72 S.W. 118,110 Tenn. 113
• Parties: HINTON v. SUN LIFE INS. CO.
• Court: Tennessee Supreme Court

72 S.W. 118

110 Tenn. 113

HINTON v. SUN LIFE INS. CO.

Supreme Court of Tennessee.

January 10, 1903

Appeal from circuit court, Davidson county; John W. Childress Judge.

Action by Walter Hinton against the Sun Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. F Whitman, for appellant.

Tip Gamble, for appellee.

NEIL J.

This suit was begun on the 22d day of May, 1902, before a justice of the peace of Davidson county, on a policy of insurance for $156. In that tribunal the cause was decided in favor of the defendant, and from this judgment the plaintiff presented an appeal to the circuit court of the county. In that court the cause was again tried, and judgment rendered in favor of the plaintiff on May 26, 1902, for $157.67, being the original sum sued for, with interest, and for all of the costs of the cause. On July 19, 1902, a motion for a new trial was made and overruled, whereupon the defendant insurance company prayed and was granted an appeal to this court, and was allowed 10 days to file a bill of exceptions; but that bill of exceptions was not filed until August 5, 1902, which was 17 days after July 19th, and 7 days beyond the time allowed. The rule is that, when time is allowed to file a bill of exceptions, and it is not filed until after the time has elapsed, it cannot be looked to on the trial of the cause in this court (Muse v. State, 106 Tenn. 181, 61 S.W 80; Jones v. Moore, 106 Tenn. 188, 61 S.W. 81), and in such a case no other result can follow in this court, so far as depends upon the matters which should be contained in the bill of exceptions, except an affirmance of the judgment of the court below. Wright v. Redd Bros., 106 Tenn 719, 63 S.W. 1120. It is true that the cases just cited were addressed to chapter 275, Acts 1899, which was enacted for the purpose of allowing time after the adjournment of court for the preparation of bills of exception, while in the case before us it does not appear whether the 10 days allowed would have carried or did carry the case beyond the adjournment of the term. But the principle is clear that, when time is allowed for the filing of a bill of exceptions, it must affirmatively appear that it was filed within that time; otherwise this court cannot look to it. Again, if we should concede that the bill of exceptions could be lawfully filed after the expiration of the 10 days, and within the term, it does not affirmatively appear that August 5th was within the term; and this fact we should be enabled to determine from the record, but this record we have before us is silent upon the subject. All that we have is that 10 days were allowed for the filing, and the filing did not take place until 17 days had elapsed. So, prima facie, in any event, the bill of exceptions was filed too late, and there is nothing in the record to rebut this presumption against it. While a bill of exceptions may be properly made up at any time during the term, if there be no rule or order to the contrary in the court in which the case was tried ( Patterson v. Patterson, 89 Tenn. 151, 14 S.W. 485), yet a party is not entitled as a matter of right to the whole of the term in which to present it. Mallon v. Tucker Mfg. Co., 7 Lea, 62, 66; Sikes v. Ransom, 6 Johns. 279. In Mallon v. Tucker Mfg. Co. it was held that a general rule was not unreasonable which fixed 15 days as the limit within which bills of exceptions were required to be presented after the verdict of the jury, or after the decision of the cause by the judge in nonjury cases. We see no reason why an order limiting the time for such preparation and filing may not be made in individual cases, and why, in the absence of a compliance with such order, the right to file may not be denied altogether. Without doubt the right to make such order would be of the greatest service to the parties in many cases where the terms of courts are long, and the facts in the cases supposed are numerous and complicated, and the questions arising are many; such cases, in short, as would in all probability soon slip from the memory of the circuit judge, and make the preparation of the bill of exceptions a work of an exceedingly uncertain and unsatisfactory nature. Indeed, the conceded right to make such an order, giving reasonable time, applicable to all cases, necessarily involves and includes the right to make it in each individual case, on the principle that that which is just as to the whole is just as to each of the parts composing that whole. Moreover, even in the absence of such general order, no question of unfair discrimination could arise between different cases in the same court, because, while a limiting order may not be made in one case, yet may be made in another, there is always to be determined by this court the question of the reasonableness of the length of time given, which must to a great extent be measured by the nature of the case itself. Applying the principle to the present case, the court can see that the facts are so few, and the record so small, the time allowed for the preparation of the bill of exceptions was not only reasonable, but most ample.

The bill of exceptions not having been filed in time, this court cannot look to it, and hence, as the record now stands, there is nothing to show error in the judgment of the court below.

On Rehearing.

(Jan. 17, 1903.)

This case, under the style of "W. A. Hinton vs. Sun Life Insurance Company," was heard on a former day of the term, and an opinion was then rendered directing an affirmance of the judgment of the court below, on the ground that the bill of exceptions was filed after the expiration of the time granted by the circuit judge, and that there was, therefore, nothing upon which the plaintiff in error could assign error. The plaintiff in error has now presented a petition showing that there was a mistake in the transcript by reason of the failure of the clerk of the circuit court to make a true copy, and that with this error corrected it would appear that the bill of exceptions was to be filed within 10 days from July 26th, instead of from July 19th, as the record shows. The prayer of the petition is that the plaintiff in error be allowed to suggest a diminution of the record, and that, upon the correction as to dates being made, the cause be reheard. The attorney for the defendant in error has filed an answer to the petition admitting its allegations, but insisting that it was the duty of the opposing counsel to examine the record before the original hearing in this court, and to have the correction then made, and that it is now too late. To this counsel for plaintiff in error replies that it was a mistake only as to dates; that such a mistake easily escapes the attention; that no point was made upon the bill of exceptions by counsel for defendant in error on the previous trial, but that this court itself raised the question, and plaintiff in error was not aware of its existence until the opinion came in, and that the determination of the case upon this point has operated in the nature of a surprise upon plaintiff in error. Although the application comes late, we think that under the facts stated it should be allowed. It is not necessary, however, that the suggestion of diminution should be actually made, or a certiorari awarded. The admissions contained in the answer to the petition, when taken in connection with the petition, supply the place of both, and correct the record so as to show that the bill of exceptions was filed in time.

Before turning to the bill of exceptions it is necessary to call attention to section 4684 of Shannon's Code. This section, referring to the practice of the circuit court, says: "Upon the trial of a question of fact by the court, the decision, if requested by either party shall be given in writing, stating the facts found and the conclusions thereon which shall constitute a part of the record." It should also be noted that the case was begun before a justice of the peace, and hence there was no pleading setting forth the cause of action except the warrant. This pleading was in the customary brief form, and was as follows: "State of Tennessee, Davidson County. To any Lawful Officer of said County: You are hereby commanded to summon Sun Life Insurance Company of America to personally appear before me, or some other acting justice of the peace for said county, to answer the complaint of W. A. Hinton in a plea of debt by insurance policy $156.00 under $500. Given under my hand and seal this 22nd day of May, 1902. H. H. Clark, J. P."

His honor, the circuit judge, was properly requested, under the section of the Code just quoted, to make written findings of fact and law, and did so in the following language:

"(1) The defendant issued one of its ordinary policies upon the life of Ella M. Burnett, December 2, 1895. It is conceded that the policy was regularly issued, and the premium paid up till March 24, 1902. The next payment due was March 31st, which Burnett failed to pay, and three other pay days were passed likewise without payment.

"(2) The court finds as a matter of fact that the insured was four weeks in arrears in the payment of the weekly dues provided for in the contract.

"(3) On the 24th of April the assistant superintendent at Nashville, Rogers, mailed to the home office at Louisville a statement of those in arrears the four weeks, and among the names presented was that of the insured. The company, through the home office at Louisville, returned to the local office at Nashville a list of the policies lapsed by the company, and the insured's name was amongst that list, to take effect April 28th, and the defendant in this case insists that the insured was more than four weeks in errears, and her

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