Louisville & N. R. Co. v. Ray

• Decision Date: 18 February 1911
• Parties: LOUISVILLE & N. R. CO. et al. v. RAY (two cases).
• Court: Tennessee Supreme Court

134 S.W. 858

124 Tenn. 16

LOUISVILLE & N. R. CO. et al. v. RAY (two cases).

Supreme Court of Tennessee.

February 18, 1911

Error to Circuit Court, Davidson County; M. H. Meeks, Judge.

Actions by James L. Ray, by his next friend, and by A. P. Ray, father of the plaintiff in the first action, against the Louisville & Nashville Railroad Company and others. From judgments in the Court of Civil Appeals for defendants, plaintiffs bring the cases up by certiorari. Judgments affirmed.

Claude Waller and Frank Slemons, for plaintiffs in error.

James P. Atkinson, for defendants in error.

NEIL J.

These two actions were brought in the circuit court of Davidson county against plaintiffs in error for an injury caused to James L. Ray, a minor about 12 years of age, as the result of his jumping from a freight car, the property of plaintiffs in error. The first action was brought by the father, and the second in behalf of the boy himself by next friend.

In the first case there was a recovery of $1,000, and in the second one of $2,500. The facts will be stated more at large when we reach the second branch of the case.

The first point presented is that the motion for new trial was not disposed of until the expiration of 30 days from the rendition of the judgments, and therefore that the matter was coram non judice, when the trial judge acted upon the motion. The verdict in each case was rendered on June 3, 1910, and judgment was rendered thereon on the same date. Motion for new trial was marked "Filed" by the clerk of the trial court on the 29th day of June, 1910, called up by the court for hearing July 5, 1910, continued until the 6th, on which latter day it was argued and held under advisement until July 9, 1910, when it was overruled. At the hearing of this motion, defendant in error objected to its consideration, upon the ground that any action relative thereto was beyond the power of the court, because the time for appeal expired after the expiration of 30 days from the date of the judgment on the verdict, relying upon Acts 1885 c. 65, §§ 1, 2. Plaintiffs in error prayed an appeal to the Court of Civil Appeals, and on that date, July 9, 1910, were granted 30 additional days to give bond and perfect the appeal. When the case reached the Court of Civil Appeals, the same point was there made and overruled. That court then proceeded to consider the case upon its merits and sustained the motion for peremptory instructions which had been made in the court below. Thereupon a petition was filed in this court for the writ of certiorari.

Prior to the act of 1885 was Acts 1871, c. 59, which was as follows:

"In all cases in the inferior courts of this state, wherein an appeal to the Supreme Court may hereafter be prayed and granted upon the terms now imposed by law, and the party appealing is a resident of another county or state, or is unable, by reason of physical inability, to be present, the court granting said appeal, may, in its discretion, allow the appellant time, in no case exceeding thirty days, in which to give bond or file the pauper's oath for the prosecution of said appeal, and such appeal bond approved by the clerk of the court from which the appeal is taken or the pauper's oath filed with said clerk within the time allowed by the court, shall render said appeal as effectual as if done as now required by the law, during the term of court at which the judgment appealed from was rendered."

Before the act of 1871 the practice in chancery causes was for the chancellor to grant such length of time as he might see proper, even beyond the end of the term, for the execution of a bond for an appeal previously prayed (McPhartridge v. Gregg, 4 Cold. 324, 326; Andrews v. Page, 2 Heisk. 634, 638; Adamson v. Hurt, 3 Shan. Cas. 424; Davis v. Wilson, 85 Tenn. 383, 5 S.W. 285); but no such power was recognized as belonging to the circuit courts (James Ricks, Ex parte, 7 Heisk. 364). To correct this practice, and to make the rule uniform in both circuit and chancery courts, the act of 1871 was passed. That act, however, was construed by this court in Jackson v. McDonald, 2 Leg. Rep. 21, decided at the December term, 1877, to mean that the grace given for execution of the bond should be computed from the day of the adjournment of the court, and not from the time at which it was granted. The result of this construction was that there were frequently great delays in the prosecution of appeals, and often they were not prosecuted at all after long indulgence had been granted under this construction, thereby delaying the enforcement of the judgment without any security to cover contingencies that might arise between the adjournment of the court and the time allowed. To meet this hardship, a great hardship where the terms were long, covering several months, as in the cities, the act of 1885 was passed. It was as follows:

"Section 1. That hereafter when an appeal, or an appeal in the nature of a writ of error, is prayed from a judgment or decree of an inferior court to the Supreme Court, the appeal shall be prayed for and appeal bond shall be executed, or the pauper's oath taken, within thirty days from the judgment or decree, if the court hold so long; otherwise, before the adjournment of the court; but, for satisfactory reasons, shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court; but in no case more than thirty days additional.

"Sec. 2. That in all cases where the appeal has not been prayed for within the time prescribed in the first section of this act, the judgment or decree may be executed."

This act covers all the ground previously covered by Acts 1871, c. 59, and was intended to take its place, and the two were improperly amalgamated in section 4898 of Shannon's Code.

We thus see the evil which was intended to be remedied by the act of 1885 and the previous act. There was no purpose on the part of the Legislature to interfere with the practice upon the subject of motions for new trial. It was held by this court in the case of Railroad v. Johnson, 16 Lea, 387 that it could not be evaded on the theory that the judgment was within the breast of the judge during the term, and that he could set it aside after the expiration of 30 days and enter a new judgment, from which the appeal could be prosecuted. It was held in Ellis v. Ellis, 92 Tenn. 471, 22 S.W. 1, that a motion to set aside a judgment by default could not be maintained, if made more than 30 days after the entry of such judgment, under the act of 1885 above reproduced; but in so doing the court pointedly remarked that no application had been made for a new trial within 30 days from the rendition of the final judgment, and no sufficient excuse had been given why the motion was not made within that time. This qualification indicated that, if there had been such motion made within 30 days, it could have been maintained and acted upon after the expiration of that period. Such, indeed, has been the universal practice of the circuit courts, the understanding of this court, and the view entertained by the bar in general, since the passage of the act of 1885. The judgment in the circuit court is entered by the clerk as a matter of course when he records the verdict. Shannon's Code, § 5892, subsec. 3. At common law there was always an interval between the entry of the verdict and the entry of the judgment within which time the motion for new trial could be made. There is no interval under our practice. Therefore the judgment is only quasi final until after the expiration of 30 days from this entry; that is, its finality is conditioned upon the absence of the entry of a motion for new trial within that time, and its subsequent sustainment by the court, or, we may and, the motion in arrest of judgment, or motion for a judgment non obstante veredicto. In other words, if a motion for new trial is made within the 30 days, the judgment for the purposes of the motion is treated as being nonexistent. If the motion for new trial is sustained, the verdict is set aside and the judgment goes with it; so if a motion in arrest of judgment is sustained, or a motion for judgment non obstante veredicto, the provisional entry of the judgment cannot interfere with any of these rights of the losing party. To hold otherwise would be not only to extend the provisions of the act of 1885 very far beyond its purposes, but it would unduly restrict the rights of litigants, and impose unwarrantable burdens upon trial judges who must, in the course of things, have sometimes several motions for new trial on hand at the same time in important cases, all requiring time and careful consideration. It would make it incumbent upon the trial judge to dispose of these motions within the limited time of 30 days from the date of the entry of the judgment, even though they did not come to him until near the expiration of that period, when it was impossible for him to give due thought to the disposition of them. As held by the court in Street Railroad Co. v. Simmons, 107 Tenn. 392, 396, 64 S.W. 705, the motion for new trial is a part of the trial itself, and may be carried over into the time allowed by law for the next term of the court, under Acts 1899, c. 40. Ray v. State, 108 Tenn. 282, 298-301, 67 S.W. 553; Rhinehart v. State, 122 Tenn. 698, 127 S.W. 445. Such motions must be made in all cases where it is desired to review any matters proper to be recorded in a bill of exceptions (Railroad v. Johnson, 114 Tenn. 632, 88 S.W. 169; Seymour v. Railroad, 117 Tenn. 98, 98 S.W. 174); and they must be considered by the trial court before they can be considered by the Supreme Court (Telephone &...