Nashville, C. & St. L. Ry. Co. v. Smith

• Decision Date: 31 March 1923
• Citation: 249 S.W. 377
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. SMITH.
• Court: Tennessee Supreme Court

249 S.W. 377

NASHVILLE, C. & ST. L. RY. CO. v. SMITH.

Supreme Court of Tennessee.

March 31, 1923.

Appeal from Circuit Court, Lincoln County; R. W. Smart, Judge.

Action by J. R. Smith against the Nashville, Chattanooga & St. Louis Railway Company. Judgment for plaintiff, and defendant appealed, and plaintiff entered a motion to affirm the judgment for the reason that no motion for a new trial had been made below. Motion to affirm sustained.

Wm. Waller, of Nashville, R. C. Armstrong, of Lewisburg, and Frank Slemons and Fitzgerald Hall, both of Nashville, for appellant.

Giles L. Evans, of Fayetteville, for appellee.

McKINNEY, J.

The defendant in error, J. R. Smith, recovered a judgment in the circuit court of Lincoln county against the railway company for $125, the value of a dog killed by one of its trains.

This case was tried by the circuit judge without the intervention of a jury, and he was requested by the railway company, before the trial, to reduce his finding of facts and conclusions thereon to writing, which he did, and signed and filed same.

From the judgment entered the railway company appealed to this court.

No motion for a new trial was made, and no bill of exceptions filed. The case is here upon the technical record, which includes the finding of facts by the trial judge.

Preliminarily the defendant in error has entered a motion to affirm the judgment of the lower court for the reason that plaintiff in error did not make a motion for a new trial.

For the plaintiff in error it is insisted that a motion for a new trial was unnecessary, since it is only seeking a reversal for errors of law apparent upon the face of the record.

In Railroad Co. v. Foster, 112 Tenn. 345, 80 S. W. 585, and Insurance Co. v. Witherspoon, 127 Tenn. 366, 155 S. W. 139, it was held that such findings of fact, when signed and filed by the court, became a part of the record under the statute without being incorporated into a bill of exceptions. These cases, however, did not hold that in such a case a motion for a new trial was unnecessary.

The rule of practice announced by this court in its later decisions require a motion for a new trial in all cases except for errors apparent upon the face of the record proper.

In Wise & Co. v. Morgan, 101 Tenn. 276, 48 S. W. 971, 44 L. R. A. 548, it was held, inferentially, that such a motion was necessary as to all matters arising upon the trial of the case The court used the following language, to wit:

"Wise & Co. appealed, and have assigned errors. Plaintiff insists that assignments of error Nos. 1, 2, 4, 10, and part of 11 cannot be considered by this court, because not assigned on the motion for a new trial in the court below, as required by the rule of that court.

"The first assignment in this court is that the circuit court erred in overruling demurrer to plaintiff's declaration; second, in sustaining plaintiff's demurrer to defendants' second and third pleas.

"Counsel are in error in supposing that it was necessary to embody the question made on the demurrer in the motion for a new trial. The demurrers had been acted on prior to the trial, and the action of the court entered upon the minutes. Since the action of the court upon the demurrers was in no wise connected with the trial of the cause, it was not necessary that such matters should again be brought to the attention of the court on motion for a new trial."

In Railroad Co. v. Johnson, 114 Tenn. 637, 88 S. W....