McAlester v. Monteverde

• Decision Date: 19 August 1937
• Citation: 115 S.W.2d 257,22 Tenn.App. 14
• Parties: McALESTER v. MONTEVERDE et al.
• Court: Tennessee Court of Appeals

115 S.W.2d 257

22 Tenn.App. 14

McALESTER v. MONTEVERDE et al.

Court of Appeals of Tennessee, Western Section.

August 19, 1937

Petition for Certiorari Denied by Supreme Court February 12, 1938.

Appeal in Error from Circuit Court, Shelby County; Ben L. Capell Judge.

Proceeding in the matter of the estate of E.W. McAlester, deceased wherein L. J. Monteverde, administrator c. t. a., and others were proponents of the will of E. W. McAlester, deceased, and B. G. McAlester was contestant. From a judgment admitting the will to probate, the contestant appeals in error.

Affirmed.

W. G Cavett, of Memphis, for plaintiff in error.

Chandler, Shepherd, Owen & Heiskell, of Memphis, for defendants in error.

ANDERSON Judge.

This record presents a contest of the will of E. W. McAlester, deceased, the principal ground of the attack being that the testator was mentally incapacitated at the time the will was executed. There was a jury verdict in favor of the proponent of the will, and from a judgment thereon the contestant appealed in error.

The first question presented is one of practice arising out of the following state of facts:

The terms of the circuit court of Shelby county are fixed by Code, § 159, to begin on the third Mondays in January, March, May, September, and November of each year. This contest was last tried at the November term, 1936. The verdict of the jury was returned on November 25, 1936, and a record thereof made upon what is referred to as the clerk's "day book" and that of the judge which may be presumed to correspond to the dockets of those officials, but no minute entry recording the verdict and awarding judgment thereon was made at that term. At the January term, 1937, the proponent of the will moved the court to enter upon the minutes a nunc pro tunc order recording the verdict of the jury and awarding judgment thereon as of November 25, 1936, the date on which the verdict was actually returned as reflected by the respective "day books" or dockets of the judge and clerk. This motion having been made on the last day of January, 1937, term, it was taken under advisement by the court and disposed of at the March, 1937, term by an order entered on April 8, 1937. The court declined to enter a nunc pro tunc order recording the verdict and judgment thereon, but did enter an order awarding judgment on the verdict as of April 8, 1937.

Thereupon on April 9, 1937, a day of the March, 1937, term, the contestant filed a motion for a new trial which was overruled at the same term, and from the judgment entered as aforesaid, the appeal in error was prosecuted.

The foregoing facts are reflected by the technical record. The evidence heard upon the trial at the November term, 1936, was not preserved by a bill of exceptions. There was, however, a bill of exceptions making a part of the record certain proceedings hereinafter referred to had in connection with the alleged misconduct of a juror which was made a ground of the motion for a new trial.

There was no application at any time for an allowance of time in which to file a bill of exceptions preserving as a part of the record the evidence heard upon the trial and there was no effort at any time to file such a bill of exceptions.

The first contention of the plaintiff in error is that the court was without jurisdiction to enter an order recording the verdict and judgment at a term subsequent to the trial term, at which the verdict was actually returned. It is argued that by reason of the entry of the verdict and judgment at a subsequent term the contestant was deprived of his right to have the court, in consideration of his motion for a new trial, pass upon the sufficiency of the evidence introduced upon the trial to sustain the verdict and also of his right to preserve the evidence by a bill of exceptions. It is insisted that this view is fully supported by the case of Jackson v. Jarrett, 165 Tenn. 76, 52 S.W.2d 137, but we do not think so.

That was a case tried before the circuit judge without a jury wherein it was held that "a judgment may not be entered nunc pro tunc at a term following its rendition, when the effect would be to cut off the right of appeal by the other party." Southern Mortgage Guaranty Corp. v. King et al., 168 Tenn. 309, 312, 77 S.W.2d 810, 811.

The nunc pro tunc order made by the circuit judge in that case at a term subsequent to the trial term was set aside because the effect of it was to deprive the other party of a substantial right, namely, his right of appeal, without his consent, express or implied. Id.

The contestant was deprived of no such right in this case, for it is only by virtue thereof that he is before us.

As above noted, at the time it was rendered, the verdict was duly recorded upon what is referred to as the "day book" kept by the judge and a similar record kept by the clerk. Presumably these records correspond respectively to the judge's docket and the clerk's docket kept pursuant to rules of the court regulating the transaction of its business. Nunnelly v. Smith, 4 Baxt. 310, 63 Tenn. 310. Contrary to commonlaw practice, it was the duty of the clerk to enter the judgment on the verdict as soon as it was returned. He needed no authority from the court or any one else to do this. Code § 10093, subsec. 3; Wind Rock Coal & Coke Co. v. Robbins, 1 Tenn.App. 734.

The omission of the entry amounted simply to a failure of the clerk to perform a ministerial duty. Since the verdict was seasonably recorded upon his docket by the trial judge, there was sufficient matter of record to authorize the entry of the verdict and judgment at a subsequent term under the authority conferred by Code, § 8721. McCall v. State, 167 Tenn. 329, 69 S.W.2d 892; Upchurch v. State, 153 Tenn. 198, 281 S.W. 462; Fort v. Dixie Oil Co., 171 Tenn. 199, 101 S.W.2d 692; Dunn v. State, 127 Tenn. 267, 275, 154 S.W. 969.

The fact that the verdict and judgment were not entered until a subsequent term did not deprive the contestant of his right to file a motion for a new trial making any question arising upon the record made and preserved at the trial term. He was not required to file such motion until after the judgment was entered. McCall v. State, supra.

If, under the facts of this case, the trial judge was without authority at the subsequent term to pass upon the question raised by the motion for a new trial with respect to the sufficiency of the evidence to sustain the verdict (Dunn v. State, 127 Tenn. 267, 276, 154 S.W. 969), it was only because the contestant failed to make the evidence a part of the record by a bill of exceptions taken and filed at the trial term. The taking and filing of a bill of exceptions does not depend upon the entry of disposition of a motion for a new trial, except in those cases where a motion for a new trial, having been filed at one term, is carried over and disposed of at another term, the exception existing only by virtue of Code, § 8822. Dunn v. State, supra; Hickerson v. State, 141 Tenn. 502, 213 S.W. 917; Carpenter v. Wright, 158 Tenn. 289, 13 S.W.2d 51; Austin v. State, 157 Tenn. 202, 7 S.W.2d 806; National Refining Co. v. Littlefield, 142 Tenn. 689, 223 S.W. 140.

We do not think that Code, § 8822, is applicable to the situation disclosed by the record for the reason among others, that the motion for a new trial was filed and disposed of at the same term, but even if it be considered that the section is applicable, it would avail contestant nothing; for he did not, as required by the statute, apply for or obtain leave of the court to file a bill of exceptions making the evidence heard upon the trial at the previous term a part of the record. National Refining Co. v. Littlefield, supra. He only filed a bill of exceptions preserving the proceedings hereinafter referred to as having been had in connection with the consideration and disposition of a motion for a new trial.

However as above indicated, we think that under the principles announced in Dunn v. State, supra, and Carpenter v. Wright, supra, and Railroad Co. v. Fort, 112 Tenn. 432, 439, 80 S.W. 429, 431, the contestant had a right to take a bill of exceptions at the trial term, thus making the evidence a part of the record, and, under the facts of this case, we think it was his duty to do this if he desired to preserve the evidence as a basis for the...