Jones v. Burch
| Decision Date | 31 December 1879 |
| Citation | 71 Tenn. 747 |
| Parties | S. M. Jones v. John C. Burch. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM DAVIDSON.
Appeal in error from the Circuit Court of Davidson County. FRANK T. REID, J.
S. J. HENDERSON for Jones.
H. E. JONES for Burch.
This case having been put on the easy docket, the plaintiff in error suggested a diminution of the record, and a certiorari for a more perfect record was awarded.
The defect consisted in the fact that the bill of exceptions was not signed by the judge, although there was an entry to the effect that at the term at which the case was tried the defendant below, who is now the plaintiff in error, had tendered his bill of exceptions, “which being signed and sealed, was ordered to be made part of the record.” The suit was tried at the September term, 1878. The clerk makes return to the certiorari that the bill of exceptions is now signed as of the date of the 18th of February, 1880, with the following statement by the judge: “I have signed the foregoing bill of exceptions this the 18th of February, 1880, for the reason that through oversight I neglected to sign at the time it was tendered to me, which was sometime during the term at which the case was determined.”
Strictly speaking, this memorandum can not be noticed. It forms no part of the bill of exceptions or of the record of the cause. To have made what was done a part of the record, there should have been an application to the Circuit Judge in open court to amend the record, and an entry upon the minutes of the court of his judicial action. Mellish v. Richardson, 1 Cl. & Fin., 224. If, however, it can be looked to, the question is squarely raised whether a judge can, after the term at which a case was tried, sign a bill of exceptions prepared and presented at that term, and not signed through oversight. It has been long settled that a bill of exceptions can not be made up after the term. Ferrell v. Alder, 2 Swan, 77; McGavock v. Puryear, 6 Col., 34; Girdner v. Stephens, 1 Heis., 280, 290. Nor can it be afterward amended. Steel v. Davis, 5 Heis., 75. A bill of exceptions can not be noticed if not signed, although the record recites that it is signed and sealed. Garrett v. Rogers, 1 Heis., 321. And the very point raised in this case seems to be decided in Hill v. Bowers, 4 Heis., 272, where the judge who delivers the opinion of the court says that a bill of exceptions, signed after the expiration of the term...
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...Cosmopolitan Life Insurance Co. v. Woodard, 7 Tenn.App. 394; Steele v. Davis, 52 Tenn. 75; Kennedy v. Kennedy, 84 Tenn. 736, 737; Jones v. Burch, 71 Tenn. 747; Shelby Co. v. Bickford, 102 Tenn. 395, 406, 52 S.W. 772; Burkett v. Burkett, 193 Tenn. 165, 245 S.W.2d 185; Frierson v. Smithson, 2......
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...T.C.A. § 27-109, Code 1932, 8819; Heald v. Wallace, 109 Tenn. 346, 71 S.W. 80; State v. Hawkins, 91 Tenn. 140, 18 S.W. 114; Jones v. Burch, 71 Tenn. 747; Garrett v. Rogers, 48 Tenn. 321; Caruthers History of a Law Suit, 7th Ed., Sec. 438, p. 477; Tennessee Procedure in Law Cases, Secs. 1903......
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Bales v. Bales
... ... Puryear, 6 Cold. 34 [46 Tenn. 34]; Garrett v ... Rogers, 1 Heisk. 321 [48 Tenn. 321]; Steele v ... Davis, 5 Heisk. 75 [52 Tenn. 75]; Jones v. Burch, ... 3 Lea 747 [71 Tenn. 747]; Darden v. Williams, ... 100 Tenn. 414, 45 S.W. 669; Nance v. Chesney, 101 ... Tenn. 466, 47 S.W. 690.' ... ...
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Ragland v. Davidson County Bd. of Ed.
...ended and he could do nothing else about it. Originally the authority of the judge expired with the adjournment of the trial term. Jones v. Burch, 71 Tenn. 747; Kennedy v. Kennedy, 81 Tenn. 24. This very harsh rule though has been extended one way or the other from time to time and finally ......