Waller v. Skeleton
| Decision Date | 03 January 1948 |
| Citation | 212 S.W.2d 690,31 Tenn.App. 103 |
| Parties | WALLER v. SKELETON et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court May 3, 1948.
Appeal in Error from Circuit Court, Montgomery County; Dancey Fort Judge.
Personal injury action by Eddie Lawrence Waller against Solia Skeleton and another. From a judgment on verdict in favor of plaintiff as reduced by involuntary remittitur, plaintiff and defendants appealed in error and the appeals in error were dismissed. On rehearing.
Order dismissing appeals in error vacated, defendants' assignments of error overruled, plaintiff's assignments sustained, and judgment entered in favor of plaintiff for full amount of verdict.
Certiorari denied by Supreme Court, 211 S.W.2d 445.
McReynolds & Marks, of Clarksville, for plaintiff.
Goodlett & Goodlett, of Clarksville, and Lewis C. Payne, of Nashville for defendants.
Defendants ask a rehearing and leave to suggest the diminution of the record. They have filed certified copies of the minutes which had been omitted from the transcript, and a certificate by the clerk showing that their motion for a new trial was filed November 6, 1946, within 30 days from the entry of the verdict and judgment on October 30, 1946.
These minutes show that the trial court did not adjourn the October term to court in course. On October 30, it adjourned till next morning, and continued to meet and adjourn from day to day, dispatching its business, until November 9, 1946. On that day, which was Saturday, the minutes concluded:
The next minute entry was for November 30, 1946. Meanwhile the intervening terms in other counties in the circuit were: November 11, Stewart; November 18, Houston; and November 25, Dickson, Code sec. 159. The minutes of November 30 commenced as follows:
Montgomery County
'November 30, 1946
'Court met at nine o'clock pursuant to adjournment with the Honorable Dancey Fort, Judge, etc., present and presiding when the following proceedings were had and entered of record, to-wit:'
Then followed orders or judgments in some ten cases, including the case before us. In this case the minute entry showed that the trial judge that day overruled defendants' motion for a new trial, approved the verdict in all respects except its amount, and being of opinion it was 'so excessive as to indicate passion, prejudice or unaccountable caprice on the part of the jury,' suggested 'on that account' a remittitur of $13,000.
This minute entry further showed that plaintiff accepted the remittitur under protest, prayed, and was granted an appeal, and was allowed 30 days to prepare his bill of exceptions and to perfect his appeal by giving bond or taking the oath. He filed the oath December 2, 1946, and his bill of exceptions was signed by the trial judge and filed by the clerk December 16, 1946. The minutes of November 30, 1946, concluded thus:
The next minute entry was for December 30, 1946. It commenced with a caption exactly like that above quoted except the date. Then followed two orders in this case, the first granting defendants an appeal in error from the judgment, and the second allowing them until January 18, 1947, to file their bill of exceptions. They filed their appeal bond December 30, 1946, and their skeleton bill of exceptions was signed by the judge and filed by the clerk January 11, 1947.
The minutes now before us show that the trial term ran through November 9, 1946. It also appears that defendants' motion for a new trial was filed November 6, 1946, within 30 days from the entry of the judgment on October 30, and within the trial term. So this motion was seasonably filed.
Being seasonably filed, this motion suspended the judgment and continued the trial judge's jurisdiction until he could dispose of the motion. He could do this at a special term (Code secs. 9935, 9936), at an adjourned term (secs. 9937, 9945.5, Ch. 7, Acts 1943), or at a subsequent regular term (sec. 159), and could then grant an appeal in error and allow time for perfecting it and for settling a bill of exceptions, for these purposes the judgment being regarded as entered at the time of overruling of the motion for a new trial. Code sections 8822 () and 9047; Mitchell v. Porter, 26 Tenn.App. 498, 511-517, 173 S.W.2d 443, 448-450, and cases there cited.
So on November 30, when he overruled the motion and suggested the remittitur, which plaintiff accepted under protest, he had authority to grant plaintiff an appeal (Code sec. 8987) and allow 30 days, as he did, for perfecting the appeal and settling the bill of exceptions. Code sections 8822 (as amended) and 9047; Mitchell v. Porter, supra, and cases there cited. Plaintiff's appeal was perfected December 2 and the bill of exceptions filed December 16, within the time allowed. Since the remittitur was suggested on the ground stated (Code sec. 8987), no motion by plaintiff for a new trial was necessary in order to have this action reviewed on appeal. Jones et al. v. City of Knoxville, 172 Tenn. 1, 108 S.W.2d 882. So the bill of exceptions and plaintiff's appeal were valid.
But was defendants' appeal in error valid? As we have seen, it was granted by the order entered December 30, and their appeal bond was filed the same day. Excluding the first day and including the last (Code sec. 11; Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403), this was the thirtieth day, before the lapse of 30 days, from November 30, the day on which the motion for a new trial was overruled and on which the judgment must be regarded as entered. Since 30 days had not elapsed, the trial judge had jurisdiction to grant defendants an appeal in error (Code sec. 9047), provided the term had not ended; i. e., if the sessions of November 30 and December 30 were one and the same term. Mitchell v. Porter, supra, and cases there cited; Strain v. Roddy, 171 Tenn. 181, 101 S.W.2d 475; cf. McCanless v. State, 181 Tenn. 308, 181 S.W.2d 154, 153 A.L.R. 832
.
By Code sections 9935, 9936 the trial judge was authorized to appoint a special term when necessary for the dispatch of the business of his court. By section 9937 he was authorized, if such business required, to adjourn the regular October term and hold an adjourned term after the time fixed by law for holding his court in some other county or counties in his circuit. He was given still more authority by section 9945.5 (Ch. 7, Acts 1943), which is in these words:
'Any judge, when holding any regular, adjourned or special term of the circuit or criminal court and the business of such court requires it, may adjourn such court and hold an adjourned term or terms at a time during or following the expiration of the time allowed by law for holding such regular term and during or subsequent to a time or times fixed by law for the holding of the circuit or criminal court by said judge in some other county or counties in the same judicial circuit with the county in which such adjourned term or terms of the court is to be held.
'All proceedings of such circuit or criminal court, at the regular, adjourned and special terms of the court, herein provided for, shall be valid and legal and have the same force and effect as if all done at the regular term and no time had intervened between the terms, and the two or more terms shall be and constitute but one term.'
Under sections 9935-9937 such special or adjourned term was to be appointed by order entered on the minutes or by publication in a newspaper in the circuit (Lieberman, Loveman & Cohn v. Knight, 153 Tenn. 268, 283 S.W. 450; Mullen v. State, 164 Tenn 523, 51 S.W.2d 497). But section 9945.5 does not prescribe the manner in which the judge shall provide for the adjourned term or terms.
It is true there is no minute entry before us adjourning the court till November 30, or December 14, or December 30, 1946. But the minutes do state that the court met on each of these days 'pursuant to adjournment.' These recitals import absolute verity, and we think they were a substantial compliance with Code section 9945.5. Compare: Standard Oil Company of New Jersey v. Naramore, Tenn.App., 207 S.W.2d 7.
Under this section these three sessions constituted but one and the same term. It follows that the trial judge had jurisdiction to grant defendants an appeal in error on December 30, that being within 30 days from the judgment, regarded as entered November 30, and within what was in legal effect one and the same term of the court; and that defendants' appeal in error was valid.
Plaintiff, however, insists that, since all of defendants' assignments of error relate to matters which must be made to appear by bill of exceptions, we cannot review such assignments, because the bill of exceptions saved by defendants was a mere skeleton form and invalid. Battier v. State, 114 Tenn. 563, 86 S.W. 711; Rose v. Third Nat. Bank, 27 Tenn.App. 553, 563, 183 S.W.2d 1, 5.
Defendants' appeal in error does not depend on that bill of exceptions. The one saved by plaintiff is available to both parties. Williams v. Bowdon, 31 Tenn. 282; Hughes v Young, 17 Tenn.App. 24, 27, 28, 65 S.W.2d 858, 860. These were cases of writs of error, but the principle is equally applicable to appeals in error. The bill of exceptions, regardless of which party takes it, must contain all the evidence of both parties and be a complete record of the trial. That record does not belong to either party, but is equally available to...
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