State v. Yarnell

Decision Date05 January 1928
Citation5 S.W.2d 471,156 Tenn. 327
PartiesSTATE ex rel. v. YARNELL, Judge. TERRY
CourtTennessee Supreme Court

Application for mandamus by the State, on the relation of Henry L. Terry against Oscar Yarnell, Judge, etc. Decree in accordance with opinion.

L Robinson Maddox and Marie A. Flynn, both of Washington, D C., for plaintiff in error.

Bernard C. Frassrand, of Chattanooga, for defendant in error.

GREEN C.J.

This matter is before us upon the application of petitioner for mandamus to require the trial judge to sign a bill of exceptions tendered to him, or, in the alternative, to require the trial judge to grant a new trial to petitioner who was cast in the suit below.

It appears from the petition that this was a will contest-petitioner contesting the will of a deceased brother. There was a judgment in the trial court sustaining the will. Petitioner made a motion for a new trial, which was overruled, and he was granted an appeal in error and allowed 60 days in which to file his bill of exceptions. Well within the 60 days the petitioner prepared a bill of exceptions and took it to adverse counsel for approval. According to the averments of the petition, adverse counsel said that he would not O. K. any bill of exceptions in the case. Petitioner then appealed to the trial judge. The latter seems to have had a rule that he would not sign a bill of exceptions unless it was approved by counsel for both parties. The petition charges that some further negotiations were had with counsel, but that no agreement could be reached between counsel for the parties with reference to the bill of exceptions. The trial judge took the position that he did not recall the evidence well enough to settle a bill of exceptions, and refused to make the effort. The trial judge did say that the bill of exceptions prepared by petitioner did not contain all the evidence, or was not adequate, but it seems from the petitioner that the trial judge made no suggestions as to additions to or corrections of the bill of exceptions, and broadly stated that his recollection of the proof was too uncertain to permit him to verify any bill of exceptions.

As stated heretofore, the petitioner acted with due diligence in the matter, and presented his version of the bill of exceptions to adverse counsel and to the trial judge in ample time to have the matter settled before the expiration of the 60 days. We do not see that the petitioner or his counsel has been at all remiss in the matter, and the 60 days passed without the preservation of any bill of exceptions.

Some time later petitioner undertook to make a motion for a new trial, which motion the circuit judge declined to allow to be filed.

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8 cases
  • Mitchell v. Porter
    • United States
    • Tennessee Court of Appeals
    • 18 July 1942
    ... ... decision would be preserved. There is no doubt about the ... jurisdiction of a court of equity to grant the relief in a ... proper case. State ex rel. Terry v. Yarnell, 156 ... Tenn. 327, 5 S.W.2d 471; Dennis v. State, 137 Tenn ... 543, 195 S.W. 162. But does the bill present a proper ... ...
  • Larkey Lumber & Wrecking Co. v. Byrnes
    • United States
    • Tennessee Supreme Court
    • 10 June 1944
    ... ... the trial judge to sign the bill of exceptions during this ... seven day period. It is only fair to state that it was the ... insistence of defendant's counsel that he declined to ... enter into this agreement because it could not confer ... authority ... deprived of this right without fault on his part is entitled ... to relief. State ex rel. Terry v. Yarnell, 156 Tenn ... 327, 5 S.W.2d 471. In the North Carolina cases cited in this ... opinion, and especially Simonton v. Simonton, supra; also in ... ...
  • Kelly v. Cannon
    • United States
    • Tennessee Court of Appeals
    • 19 May 1937
    ...cannot direct the trial judge to authenticate a bill of exceptions where it is inadequate and does not contain all the evidence. State v. Yarnell, supra; v. Cooper, 107 Tenn. 202, 64 S.W. 50. Code, secs. 9056, 9057, authorizing the designation of parts of the record on appeal, have no appli......
  • Bellamy v. Cracker Barrel Old Country Store
    • United States
    • Tennessee Supreme Court
    • 7 December 2009
    ...be entitled to a new trial as long as the trial court's failure to act was not the fault of the party. See State ex rel. Terry v. Yarnell, 156 Tenn. 327, 5 S.W.2d 471, 471-72 (1928). Here, the parties filed no fewer than four statements of the proceedings and related objections in the trial......
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