Nashville Ry. & Light Co. v. Marlin

• Decision Date: 26 January 1907
• Citation: 99 S.W. 367
• Parties: NASHVILLE RY. & LIGHT CO. v. MARLIN (two cases).
• Court: Tennessee Supreme Court

99 S.W. 367

NASHVILLE RY. & LIGHT CO. v. MARLIN (two cases).

Supreme Court of Tennessee.

January 26, 1907.

Error to Circuit Court, Davidson County; J. A. Cartwright, Judge.

Actions between the Nashville Railway & Light Company and Florence Marlin, by next friend, and between said company and John D. Marlin. To the judgment a writ of error is taken. Heard on motion to strike out parts of the record. Motion sustained, and judgment affirmed.

R. F. Jackson, for plaintiff in error. H. S. Stokes and Joseph W. Byrns, for defendants in error.

SANSOM, Special Judge.

These cases are before the court upon the following motion made by defendants in error:

"Come the defendants in error, by their attorneys, and show herewith to the court a certified copy of the bill of exceptions as the same was filed in this case in the circuit court of Davidson county, and thereon move the court to strike from the record:

"(1) That portion of the transcript beginning on page 49 and ending on page 532, purporting to be the evidence adduced on the former trial of the case. The same was not properly made a part of the record by the said bill of exceptions, in that it is not sufficiently identified therein.

"(2) That part of the transcript beginning on page 533 and ending on page 542, and purporting to be the charge of the court, because it is not properly made a part of the record by said bill of exceptions, in that it is not sufficiently identified thereon.

"(3) That portion of the transcript beginning on page 543 and ending on page 548, purporting to be special request offered by the defendant, because the same is not properly made a part of the record by said bill of exceptions, in that it is not sufficiently identified therein.

"A certified copy of said bill of exceptions, as it is on file in the lower court, is here to the court shown, and is attached hereto and filed herewith as Exhibit A to this motion.

"Whereas, and for the reasons aforesaid, the defendants in error pray that the transcript as filed in this court may be purged in the parts hereinbefore specified."

Accompanying this motion is a certified copy of the original bill of exceptions as it is on file in the lower court, and which is as follows:

"Bill of Exceptions.

"On the trial of these causes the following evidence was submitted to the jury:

"Witnesses for plaintiffs: (Here insert plaintiffs' evidence.)

"The plaintiffs read the deposition of Mrs. Owen. (Here insert Mrs. Owen's deposition.)

"The plaintiffs here closed their proof in chief and the defendants introduced the following evidence: (Here insert defendants' evidence.)

"The plaintiffs then introduced the following rebuttal evidence: (Here insert plaintiffs' rebuttal evidence.)

"This was all the evidence in these cases.

"The court charged the jury as follows: (Here insert the charge of the court.)

"After the court had finished delivering the general charge to the jury, and before they had retired from the jury box to consider of their verdict, the defendant offered the following special requests, which were refused: (Here insert special requests of defendant.)

"The defendant moved the court for a new trial upon the following grounds: (Here insert grounds of motion.)

"There is a rule of the circuit court of Davidson county in regard to motions for new trial, which is in words and figures as follows: (Here insert said rule.)

"The defendant tenders this, its bill of exceptions to the judgment of the court overruling its motion for a new trial, which is signed and sealed and ordered to be made a part of the record.

"This 18th day of May, 1906.

                             "J. A. Cartwright, Judge."
                

This motion will have to be sustained. This certified copy of the bill of exceptions brings the case clearly within the rule announced by this court at its December term, 1904, in the case of Battier v. State, 114 Tenn. 563, 86 S. W. 711. In that case this court said:

"It does not appear from the bill of exceptions that the evidence introduced or the charge of the court had even been reduced to writing. It does not appear that the affidavit and the papers containing the evidence and charge, if in writing, were presented as a part of the bill of exceptions or were present when it was signed. They are not in any way described, so that they could be identified by the clerk in making the transcript, as the particular papers which were examined by the trial judge and directed to be copied into the bill of exceptions. They are in no way authenticated by the signature of the judge. Their identification...