Memphis Consol. Gas & Electric Co. v. Simpson

• Decision Date: 29 June 1907
• Citation: 103 S.W. 788,118 Tenn. 532
• Parties: MEMPHIS CONSOLIDATED GAS & ELECTRIC CO. ET AL. v. SIMPSON ET AL.
• Court: Tennessee Supreme Court

103 S.W. 788

118 Tenn. 532

MEMPHIS CONSOLIDATED GAS & ELECTRIC CO. ET AL. v. SIMPSON ET AL.

Supreme Court of Tennessee.

June 29, 1907

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Suit by the Memphis Consolidated Gas & Electric Company and another against R. A. Simpson, administrator, and others, for an injunction restraining defendants from further prosecuting their motion to strike testimony from a transcript in an action between the parties now on appeal. From a decree granting the injunction, defendants appeal. Affirmed.

Tim E Cooper, Myers, Banks & Apperson, and Bell, Terry, Anderson & Bell, for appellants.

W. A Percy, E. E. Wright, and E. Hedrick, for appellees.

BEARD C.J.

The present case comes by appeal from the chancery court of Shelby county. The decree pronounced in the cause was upon an order pro confesso taken against all the defendants. The allegations of fact in the bill, upon the consideration of the cause by this court, must therefore be taken as true. From these allegations it appears that in December, 1903, one of the defendants, to wit, R. A. Simpson, as the administrator of the estate of Wm. E. Simpson, deceased brought a suit against the Memphis Telephone Company and the Memphis Consolidated Gas & Electric Company in the circuit court of Shelby county for having by their alleged negligence caused the death of his intestate. The cause was tried in the latter part of July, 1905, in that court, and the jury impaneled in the cause returned a verdict therein for $7,500, upon which judgment was pronounced after a motion for a new trial had been overruled. From this judgment both defendants prayed and were granted an appeal in the nature of a writ of error to this court.

At the close of the trial, and after the motion for a new trial had been overruled, but before the appeal in error was perfected, there arose in the court a question as to the bill of exceptions to be prepared in view of the appeal. The bill avers that at this point the 3d of August had been reached, and that the trial judge and at least one of the counsel of plaintiff in the cause and one of the counsel of the defendants were anxious to leave the city for vacation, in which rest and recreation might be secured. The trial had lasted several days, and a large number of witnesses had been examined for the plaintiff and for the defendant. The testimony of these witnesses had been taken down by a stenographer, and much of it existed at that time in stenographic notes, which needed to be extended in longhand or typewriting before it could be inserted in the bill of exceptions, so as to be intelligible to court and counsel. To do this, according to the representation of the stenographer who made these notes, would require several days. In consideration of the premises, and with a purpose to accommodate both the court and such of the counsel who desired to leave the city, an agreement was reached and entered into between the counsel and the court that the trial judge might then and there sign a skeleton bill of exceptions, which would be complete, except for the transcript of the testimony, and as to this blank spaces should be left for the insertion therein in proper places of the same as soon as it was transcribed. It is further alleged that it was then represented and expressly stated by the counsel for the administrator, Simpson, that no objection should be made to, and no advantage should be taken by, them of the irregularity of this proceeding when the case should come before the Supreme Court on appeal in error. Upon the faith of this agreement the bill of exceptions was accordingly signed in this shape and left in the hands of the clerk of the trial court. In the course of a few days the stenographic notes of this testimony were written out at length and turned over to the clerk of the trial court, who inserted them in the bill of exceptions in accordance with this agreement, and in due course made out and transmitted the record to the Supreme Court. On reaching this court the case under a proper title was duly docketed, when, it is alleged, the counsel for Simpson, who with their client are made defendants to this bill, at the first opportunity and in utter disregard and repudiation of their statements, representations, and agreement, made to the Supreme Court a suggestion in diminution of the record so signed up. Upon this suggestion the Supreme Court by writ of certiorari directed the clerk to send up the original bill of exceptions in the shape it was when signed by the trial judge.

It is further alleged that when, in answer to this writ, this original record reached the Supreme Court, and counsel for the administrator, Simpson, again "in disregard and repudiation of their statements, representations, and agreement," moved the Supreme Court to strike from the transcript testimony incorporated therein in accordance with the arrangement and agreement set out above. When this was done the plaintiffs in error in the cause presented the present bill of complaint in the chancery court of Shelby county against R. A. Simpson, administrator, and against D. E. Myers and John E. Bell, his counsel, praying that they might be enjoined from prosecuting this motion before the Supreme Court; this motion being based upon the ground that the testimony in question was not properly identified and incorporated in the bill of exceptions.

The bill alleged that the transcript in the case had been made out by the clerk of the circuit court in exact compliance with the agreement set out above, and that but for this agreement the complainant's counsel would have caused a bill of exceptions regular in all respects to have been made out, submitted to, and authenticated by the trial judge; yet, relying on this agreement, they had permitted the term of the court at which the case was to be tried to pass, and no objection or exception was made, and no intimation was given that such would be made by the defendants, until it was too late for complainants to get a bill of exceptions regularly made and signed. It was further alleged that the complainants, who were the plaintiffs in error in the cause appealed from the circuit court, were ready, upon the record as made up, to present good and substantial reasons why the judgment in that cause should be reversed; but, if the motion made to strike out the testimony from the transcript was prosecuted and entertained, that they would be deprived of all opportunity of presenting their reasons for reversal, thus working to them an irreparable injury. Having no adequate remedy at law, complainants prayed an injunction against the defendants, restraining them from further prosecuting their motion to strike out the testimony from the transcript and from further seeking advantage of the fact that it was not properly identified and incorporated in the bill of exceptions when the same was signed by the trial judge.

A fiat for an injunction was granted by the chancellor, as prayed for, preliminary in character, which, upon final decree, was made perpetual. From this decree the cause has been brought into this court by appeal, and assignments of error have been made to the action of the chancellor in rendering this decree.

Upon the facts averred in the bill of complainants, and admitted to be true by the order pro confesso, the question is not that asked by the counsel of the appellants, "Can a bill of exceptions not authenticated by the judge be made by agreement of counsel?" and answered by him in the negative with much ingenuity and citation of authority, but rather this, "Shall these defendants be permitted to impeach, as they are seeking to do, a bill of exceptions authenticated by the trial judge and perfected upon its face, in breach of a solemn agreement made by the counsel at the time of the authentication, when such impeachment would work irreparable injury to the complainant?" The real question presented in the record is that aptly put by the counsel of complainants: "Can an attorney at law to-day in open court, and for the convenience of himself as well as for that of the court and opposing counsel, be heard to assure the court and opposing counsel that he will make no objection to, nor take any advantage of, an irregularity in a particular mode of practice, be heard to-morrow, when it is too late to cure the irregularity, to make the very same objection and take the very advantage he solemnly assured both court and counsel he would not make or take?" Another question, which is but a corollary of the first, is: "If the attorney will not be heard in this act of repudiation, will the litigant whom the attorney represented be allowed to do so?"

No court has gone further than this in regard to the necessity for having bills of exception examined and authenticated by the trial judge. As early as Wynne v. Edwards, 7 Humph. 419, it was held that it was a high exercise of judicial power to make extraneous matter part of the record and that before such matter could become a part of the record it must be examined and authenticated under the hand and seal of the judge. The latest published recognition of the soundness of this rule is in the case of ...