Physicians' Mutual Health & Accident Ins. Co. v. Grigsby
| Decision Date | 22 October 1932 |
| Citation | 53 S.W.2d 381 |
| Parties | PHYSICIANS' MUTUAL HEALTH & ACCIDENT INS. CO. v. GRIGSBY. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Appeals, on Appeal from Circuit Court, Washington County.
Action by A. H. Grigsby against the Physicians' Mutual Health & Accident Insurance Company. To review a judgment of the Court of Appeals dismissing its appeal from judgment for plaintiff, defendant brings certiorari.
Modified and affirmed.
Carter & McKinney, of Johnson City, for plaintiff in error.
S. S. Kirkpatrick, of Jonesboro, for defendant in error.
The original defendant prayed and was granted an appeal to the Court of Appeals from a judgment rendered against it by the circuit court of Washington county. The order granting the appeal, entered on the date judgment was rendered, recites: "And said defendant is given forty days from this date in which to perfect his said appeal, give bond, file his bill of exceptions, etc."
The appeal bond was filed within the forty days allowed, but more than thirty days from the date the appeal was prayed and granted. The record does not disclose the date on which the said circuit court was adjourned for the term. The Court of Appeals dismissed the appeal, on the ground that the appeal bond, having been filed more than thirty days after the entry of the judgment, was a nullity. That court said: "The trial judge has no authority to grant more than thirty days for the filing of the appeal bond."
The appellant filed its petition for certiorari in this court, which petition has heretofore been granted, and a writ of certiorari issued.
The Code of 1932, § 9047 (unchanged from Acts 1885, c. 65), directs that an appeal shall be prayed and bond executed within thirty days from the judgment or decree, if the court holds so long, otherwise before the adjournment of the court. The section continues: "But for satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court; but in no case more than thirty days additional."
Under this section of the Code, an appellant has thirty days from the date of adverse judgment against him, within which to file his appeal bond as a matter of right, only "if the court holds so long." If the term of the circuit court at which the order was entered continued for as long as ten days from the date of the order under consideration, ...
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...court, the costs shall be adjudged against the party attempting to institute or bring up the cause." See Physicians, etc., Insurance Co. v. Grigsby, 165 Tenn. 151, 155, 53 S. W.2d 381; Markham v. Haddad, 2 Tenn. App. 370, CROWNOVER and FELTS, JJ., concur. On Petition for Rehearing. FAW, Pre......
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...thirty days additional." Mr. Justice Swiggert discussed this question most ably in the case of Physicians' Mutual Health & Accident Insurance Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381, 382, in which, among other things, it was "If the court holds as much as thirty days from the date of t......
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...5, which was within the additional time allowed; and the court had power to grant such additional time. Physicians Mut. Health & Acc. Ins. Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381; Strain v. Roddy, 171 Tenn. 181, 101 S.W.2d 475. This additional time was allowed not only "to file his bil......
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