Standard Life Ins. Co. of the South v. Adams

• Decision Date: 01 April 1939
• Citation: 126 S.W.2d 311,174 Tenn. 405
• Parties: STANDARD LIFE INS. CO. OF THE SOUTH v. ADAMS.
• Court: Tennessee Supreme Court

126 S.W.2d 311

174 Tenn. 405

STANDARD LIFE INS. CO. OF THE SOUTH v. ADAMS.

Supreme Court of Tennessee.

April 1, 1939

Appeal in Error from Circuit Court, Bedford County; Sterling S Brown, Special Judge.

Action by Hoyte Adams, by next friend, against the Standard Life Insurance Company of the South.From a judgment for plaintiff, defendant appeals in error.

Affirmed.

Walker & Hooker and Wm. C. Sugg, all of Nashville, for plaintiff in error.

R. B Jackson, of Shelbyville, for defendant in error.

GREEN Chief Justice.

The judgment in this case was affirmed at a former day of the term upon motion of counsel for defendant in error because the bill of exceptions was not filed in the time prescribed by the trial judge.A petition to rehear, accompanied by a suggestion of diminution of the record, has been filed.

We do not think the suggestion of diminution would accomplish anything.The record as it is sufficiently shows that the case was tried below on a stipulation of facts.Moreover under Rule 9 of this court, a suggestion of diminution is not ordinarily entertained after the hearing.

The petition for rehearing proceeds on the idea that no bill of exceptions is required when a case is tried in the circuit court on a written stipulation of facts.Johnson v Martin Furniture Co.,139 Tenn. 580, 202 S.W. 916, is cited for this proposition.In that case a judgment of the circuit court was affirmed by the Court of Civil Appeals because no motion for a new trial was made.Of this action, this court said:

"This was an erroneous ruling.The agreed case when filed became a part of the record without any certification or signing by the trial judge.No bill of exceptions was requisite to preserve the grounds of exceptions as the foundation for a motion for a new trial.Such a motion was not essential."

The statement that no motion for a new trial was necessary for the review of a case tried in a law court upon stipulation of facts has been expressly disapproved by this court in later cases.Rogers v. Colville,145 Tenn. 650, 238 S.W. 80;Board of Equalization v. Nashville, C. & St. L. Ry.,148 Tenn. 676, 257 S.W. 91, 93.In the latter case, after referring to previous decisions of this court, it was said:

"Observing, therefore, the rule announced in the foregoing cases, where the conclusion of the court of law is the result of a consideration of facts, and an application of the law thereto, a motion for new trial is necessary to authorize a review on appeal in error, whether the facts are presented to the trial court upon agreed facts, facts disclosed in documents exhibited with the pleadings, or facts presented to the court as exhibits to or made part of the return to a writ."

Although the opinion in Johnson v. Martin Furniture Co., supra, does not make it clear, it is likely that the stipulation of facts referred to in the above quoted language from that case was entered upon the minutes of the court, and the necessity of a bill of exceptions thereby obviated.It distinctly appears in Rogers v. Colville, supra, that the stipulation of facts was so entered upon the minutes of the trial court and, referring to Rogers v. Colville, this court said in Board of Equalization v. Nashville, C. & St. L. Railway, "Here the stipulation was entered upon the minutes which obviated...