Newton Finance Corp. v. Conner

• Decision Date: 28 November 1930
• Parties: NEWTON FINANCE CORPORATION v. CONNER et al.
• Court: Tennessee Supreme Court

33 S.W.2d 95

161 Tenn. 441

NEWTON FINANCE CORPORATION v. CONNER et al.

Supreme Court of Tennessee.

November 28, 1930

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by the Newton Finance Corporation against Frank Conner and others. Judgment for defendant in the circuit court on appeal from justice's court, and plaintiff appeals.

Affirmed.

Charles A. Noone and Carlton Wright, both of Chattanooga, for plaintiff in error.

Thompson & Ballard, of Chattanooga, for defendants in error.

SWIGGART J.

This is an action in replevin, instituted before a justice of the peace and carried to the circuit court of Hamilton county by the defendant's appeal. Judgment was rendered for the defendant in the circuit court, and the plaintiff was granted an appeal in error to the Court of Appeals. The record indicating that the case was tried in the circuit court upon an agreed stipulation of facts, the case was transferred by the Court of Appeals to this court.

The defendant in error has moved to dismiss the appeal in this court because the assignments of error were not filed within the time required, and because the appeal bond and bill of exceptions were not filed within the time granted by order of the circuit court.

The assignments of error were not filed within the time required by the Court of Appeals, but no point thereon was made until after the case was transferred to this court. The assignments were filed within the time required by the rules of this court, and the point made by the defendant in error is therefore not well taken.

The motion to dismiss the appeal on the ground that the appeal bond and bill of exceptions were not filed within the time granted by the trial court is based upon the following facts which appear on the record:

The circuit court rendered judgment for the defendant on the merits of the case on October 18, 1929. The plaintiff's motion for a new trial was overruled on October 28, 1929, and on that day the plaintiff was granted an appeal in the nature of a writ of error to the Court of Appeals, and an order was entered allowing the plaintiff thirty days within which to prepare and file its bill of exceptions "and otherwise perfect the appeal." The appeal bond and bill of exceptions were not filed within thirty days from this day; but within the thirty-day period, on November 2 1929, the plaintiff entered a motion in arrest of judgment and this motion was overruled on November 18, 1929. The order overruling the motion in arrest of judgment granted the plaintiff an appeal to the Court of Appeals, and again granted plaintiff thirty days within which to file an appeal bond and bill of exceptions. On December 9, 1929, an additional thirty-day period was granted within which to file the bill of exceptions, making a total of sixty days for the filing of that instrument. The appeal bond was filed within thirty days of the date on which the second order granting an appeal was entered, and a bill of exceptions was filed within the sixty-day period so granted.

The circuit court was authorized to grant the plaintiff sixty days from the adjournment of the trial term within which to file its bill of exceptions. Acts 1917, c. 49. The time allowed by the circuit court for the filing of the bill of exceptions in this case did not exceed that authorized by the statute, and the bill of exceptions was properly made a part of the record.

The appeal bond was filed within the thirty-day period allowed in the second order granting an appeal, made on the date the plaintiff's motion in arrest of judgment was overruled, but was not filed within the time allowed in the first order granting an appeal, which had been entered before the motion in arrest of judgment was filed.

The question presented by this confusion of orders is ruled by the cases of Feldman v. Clark, 153 Tenn. 373, 284 S.W. 353, 354; Wright v. Dorman, 155 Tenn. 189, 291 S.W. 1064; and England v. Young, 155 Tenn. 506, 296 S.W. 14.

Wright v. Dorman and England v. Young hold that the granting of an appeal, which is not followed by the filing of an appeal bond or the oath provided by law for poor persons, is not effective to transfer a case from the trial court to an appellate court.

In Feldman v. Clark, this court referred to the case of Louisville & N. R. Co. v. Ray, 124 Tenn. 16, 134 S.W. 858, Ann. Cas. 1912D, 910, as construing the Acts of 1885, c. 65, "to mean that, if motions for a new trial, motions in arrest, etc., were entered within 30 days, they might be disposed of at the convenience of the court and an appeal allowed within 30 days after such disposition."

From these holdings it seems to us that the order granting an appeal on October 28, 1929, not having been followed by the filing of an appeal bond within the time allowed, should be treated as having been abandoned; and that the appeal was properly granted and perfected under the order entered upon the disposition of the plaintiff's motion in arrest of judgment.

The parties are creditors of one C. E. McKinney. The defendant, a judgment creditor, caused an execution to be levied on the automobile in suit, as the property of the debtor. The plaintiff replevied the automobile under the authority of a chattel mortgage executed to him by the debtor. The defendant resists the asserted priority of the mortgage lien on the ground that its registration was void and ineffective, because of a substantial defect in the certificate of acknowledgment. The sufficiency of this certificate is the determinative question in the case. The trial judge held it bad, and this holding is the basis of the only assignment of error.

It is contended that the certificate is defective in its certification of the identity of the person making the acknowledgment as the mortgagor named therein. The certificate recites: "Personally appeared C. E. McKinney, who, I am satisfied is the grantor in the within chattel mortgage named."

The form of certificate of acknowledgment, essential to a valid registration of the instrument, is prescribed by statute, and is not left to the discretion of the probating officer. Section 2042 of the Code of 1858 (Shannon's Code, § 3717) requires that the certificate shall identify the person making the acknowledgment by the words: "Personally appeared, *** the within named bargainor, with whom I am personally acquainted."

An alternate form of this certificate is prescribed by Acts 1919, c. 48. The form for the certificate given in section 1 of that act contains the words: "Personally appeared __________, to me known to be the person (or persons) described in and who executed the foregoing instrument."

Failure of the certificate of acknowledgment on the mortgage...