Life & Casualty Ins. Co. v. Baber

• Decision Date: 18 March 1933
• Citation: 57 S.W.2d 791
• Parties: LIFE & CASUALTY INS. CO. v. BABER.
• Court: Tennessee Supreme Court

57 S.W.2d 791

LIFE & CASUALTY INS. CO. v. BABER.

Supreme Court of Tennessee.

March 18, 1933.

Appeal from Circuit Court, Davidson County; E. F. Langford, Judge.

Action by Virginia Baber against the Life & Casualty Insurance Company. Defendant's motion to set aside a judgment by default was overruled, and defendant brings error.

Reversed, and remanded for trial.

M. P. Estes, of Nashville, for plaintiff in error.

C. H. Rutherford, of Nashville, for defendant in error.

COOK, Justice.

The plaintiff in error appealed to the circuit court from a judgment rendered against it by a justice of the peace in an action of debt. The appeal reached the circuit court February 13, 1931. A judgment by default entered June 30, 1931, was set aside July 18, 1931. March 23, 1932, a second judgment by default was entered. April 20, 1932, within thirty days after the entry of the judgment, plaintiff in error entered a formal motion to set aside the judgment by default upon the ground that it was taken without notice and while counsel for the insurance company was absent from the state on business. The record of the action of the trial judge upon the motion appears in a minute entry as follows:

"Upon consideration of the said motion, the Court was pleased to order that a new trial be granted, but before the order granting the new trial was entered on the Minutes the Clerk of the Court called the Court's attention to the fact that the date upon which the Court made this order was Saturday, April 23, 1932, and that it was thirty-one (31) days from the time that the judgment in the case was entered.

"Thereupon, the Court reconsidered the said order and held that inasmuch as the 31 days had passed, as aforesaid, it was without jurisdiction to grant a new trial.

"Thereupon attorney for the defendant called to the Court's attention the fact that the written rules of this Court duly made and entered on its Minutes provided that no motion could be heard except on Saturdays of each week and that no motion could be heard upon such Saturdays, unless said motion was entered upon the motion docket required to be kept in the Clerk's office for that purpose prior to three o'clock of each Wednesday, before the said Saturday, and that the motion in this cause was duly entered upon such motion docket under said rule prior to 3 o'clock of Wednesday before the Saturday upon which said motion was heard as aforesaid and that the said motion was entered upon the docket twenty-eight (28)...