Mullins v. Tennessee Stave & Lumber Co.

• Citation: 290 S.W. 975,155 Tenn. 132
• Parties: MULLINS v. TENNESSEE STAVE & LUMBER CO. ET AL.
• Decision Date: 26 February 1927
• Court: Tennessee Supreme Court

290 S.W. 975

155 Tenn. 132

MULLINS v. TENNESSEE STAVE & LUMBER CO. ET AL.

Supreme Court of Tennessee.

February 26, 1927

Appeal from and Error to Circuit Court, Fentress County; W. H Buttram, Judge.

Action by Laura Mullins against the Tennessee Stave & Lumber Company and others. Judgment for plaintiff against defendants Jackson and Laxton only, and they appeal, and plaintiff files the record for writ of error. Affirmed.

McKINNEY J.

Mrs Mullins instituted this suit, under the workmen's compensation statute, against the Tennessee Stave & Lumber Company, George Jackson, and A. Laxton to recover compensation for the death of her husband, George Mullins.

The trial court dismissed the suit as to the Tennessee Stave & Lumber Company, but entered judgment against Jackson and Laxton for $8 per week for 400 weeks.

Jackson and Laxton have appealed, and Mrs. Mullins has filed the record for writ of error. Mrs. Mullins assigns two errors. First, that the suit should not have been dismissed as to the Stave & Lumber Company; and, second, that the sum awarded should have been $11.42 per week instead of $8. The petitioner, Laura Mullins, entered no motion for a new trial which is prerequisite to assigning errors upon questions of fact in this court.

Section 32 of chapter 123, Acts of 1919, provides that the case shall be heard by the circuit judge, criminal judge, or chancellor without a jury, as other nonjury civil cases are heard in the circuit court.

It is a familiar rule that the finding of facts by a circuit judge, upon conflicting evidence in a nonjury case, have the same force and weight in the appellate court as a verdict of a jury. See cases listed on page 116, volume 5 of Encyclopedic Digest of Tennessee Reports.

Section 32 of the compensation statute also contains the following provision:

"Any party to the proceedings in the circuit, criminal or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, pray an appeal in the nature of a writ of error to the Supreme Court of Tennessee, where the cause shall be heard and determined in accordance with the practice governing other appeals in the nature of a writ of error in civil causes."

It is well settled that, where an action at law, in a civil case, is brought to this court by an appeal in the nature of a writ of error, only such errors of law as appear on the face of the record will be corrected. If there is no evidence to support the judgment, then a reversal will be ordered for error of law apparent on the face of the record. History of a Lawsuit, p. 335; 5 Digest of Tennessee Reports, pp. 90, 91.

In the absence of a motion for a new trial, however, the court will consider only errors which appear upon the face of the record proper or the technical record. Nashville, C. & St. L. Ry. Co. v. Smith, 147 Tenn. 456, 249 S.W. 377; Board of Equalization v. N. C. &. St. L. Ry., 148 Tenn. 676, 257 S.W. 91.

The trial court will not be put in error for matters not...