Kelly v. Cannon

• Decision Date: 19 May 1937
• Citation: 117 S.W.2d 760
• Parties: KELLY v. CANNON.
• Court: Tennessee Supreme Court

117 S.W.2d 760

KELLY v. CANNON.

Court of Appeals of Tennessee, Middle Section.

May 19, 1937.

On the Merits March 26, 1938.

Certiorari Denied by Supreme Court June 11, 1938.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil, Judge.

Action between Clara Kelly, will contestant, and Annie Mai Cannon, proponent, which was tried to the circuit court on an issue of devisavit vel non. A judgment was entered sustaining the will and ordering its probate. The motion of Clara Kelly, contestant, for a new trial was overruled, and she appeals in error. The contestant petitioned for an alternative writ of mandamus to compel the circuit court to sign a bill of exceptions, which petition was denied.

Judgment affirmed and cause remanded.

Z. Alexander Looby, of Nashville, for plaintiff in error Clara Kelly.

Jno. C. Sandidge and Jno. M. Cate, both of Nashville, for defendant in error Annie Mai Cannon.

CROWNOVER, Judge.

This case is before us on petition for an alternative writ of mandamus to compel the circuit judge to sign a bill of exceptions, which alleged bill of exceptions was made exhibit A to the petition.

It is alleged in the petition that the case of Clara Kelly v. Annie Mai Cannon was tried before the circuit court on an issue of devisavit vel non, and a verdict was returned in favor of the proponent of the will which was followed by a judgment sustaining the will and ordering its probate. The contestant's motion for a new trial was overruled and she appealed in error to this court.

It is further alleged that the petitioner prepared and tendered to the trial judge a bill of exceptions containing all the evidence introduced at the trial on the question of the execution and attestation of the will, but that it did not contain all the evidence relative to the testamentary capacity of the testator, and that there was considerable evidence on this question, which would cost the plaintiff in error in excess of fifty dollars to have transcribed, and as the proponent is only contesting the execution and attestation of the will she deemed it unnecessary to have all the other evidence touching the testamentary capacity of the decedent included in the bill of exceptions, and under the statutes, New Code, secs. 9056, 9057, she designated only that part of the record necessary to try this issue on appeal.

She further alleged that she presented this bill of exceptions containing only the evidence on that issue to the trial judge who refused to sign and authenticate the same because it did not contain all the evidence adduced at the trial. Therefore she prayed for an alternative writ of mandamus to compel the trial judge to sign the bill of exceptions as tendered.

We must deny this petition for two reasons:

(1) Because the technical record is not filed in this Court showing that an appeal was prayed, granted and perfected giving this court jurisdiction to pass on the question. It was necessary for the petitioner to have presented the technical record duly certified by the clerk showing that the appeal in error had been perfected. Smartt v. Woodlee, 5 Tenn.App. 59; Tennessee Procedure by Higgins & Crownover, Sec. 2494.

(2) The appellate courts cannot direct the trial judge to authenticate a bill of exceptions that does not contain all the evidence. State ex rel. Terry v. Yarnell, Judge, 156 Tenn. 327, 5 S.W.2d 471.

The appellate courts may mandamus a trial judge to sign a bill of exceptions when it contains all the evidence. Tennessee Procedure by Higgins & Crownover, secs. 1908-1911, 2493. But this court cannot direct the trial judge to authenticate a bill of exceptions where it is inadequate and does not contain all the evidence. State v. Yarnell, supra; State v. Cooper, 107 Tenn. 202, 64 S.W. 50.

Code, secs. 9056, 9057, authorizing the designation of parts of the record on appeal, have no application to bills of exceptions. See State ex rel. Terry v. Yarnell, supra. This case was decided long after the Act 1903, Ch. 35, was passed. It would be dangerous practice to permit the plaintiff in error to designate only the evidence that he wanted. It is his duty to prepare the whole bill of exceptions. Moulton v. State, 163 Tenn. 1, 41 S.W.2d 373.

Hence the relief prayed in the petition must be denied.

FAW, P. J., and FELTS, J., concur.

On The Merits.

CROWNOVER, Judge.

This case was before us last May on petition for an alternative writ of mandamus to compel the Circuit Judge to sign a bill of exceptions, he having refused to sign the same for the reason that it was not complete and did not contain all the evidence. We refused the relief prayed for in the petition for the reasons stated in the opinion filed on May 19, 1937.

It appears that this is a will contest on an issue of devisavit vel non. The case was tried in the Circuit Court at its February term, and was decided against the contestant, Clara Kelly. Her motion for a new trial was overruled on April 24, 1937, and she was allowed thirty days from that date within which to prepare and have filed her bill of exceptions and to perfect her appeal.

After her petition for mandamus was denied in this court she went back to the lower court, on May 24, 1937, and upon motion was allowed fifteen days' additional time within which to prepare and have filed her bill of exceptions. This order was made at the May term of the Circuit Court, and the record shows that she filed her bill of exceptions on June 7, 1937, after the same had been signed by the trial judge.

She perfected her appeal by filing the pauper's oath within the time required by the statute, Code 1932, § 9047, and has filed her assignments of errors in this court, which are as follows:

"(1) The Court erred in proceeding to trial of this cause while same was not at issue.

"(2) That the Court erred as a matter of law in ruling that the execution of the paper instrument purporting to be the will of Lawrence Laine, deceased, had been proved as a matter of law.

"(3) That the Court erred in permitting the proponent to introduce the said paper instrument as the Last Will and Testament of Lawrence Laine, deceased.

"(4) That the Court erred in overruling contestant's motion for a directed verdict at the close of all the evidence."

The defendant at the outset has moved this court for an order striking from the record the bill of exceptions filed in this cause and for affirmance of the judgment of the lower court, because the bill of exceptions was filed after the expiration of the thirty days allowed by the order made on April 24, 1937, which was at the February term of the court, as the court had no jurisdiction to make an order on May 24th extending the time for the filing of the bill of...