Kelly v. Cannon , 22 Tenn. App. 34 ( 1937 )

This case is before us on petition for an alternative writ of mandamus to compel the circuit judge to sign a bill of exceptions, which alleged bill of exceptions was made exhibit A to the petition.

It is alleged in the petition that the case of Clara Kelly v. Annie Mai Cannon was tried before the circuit court on an issue of devisavit vel non, and a verdict was returned in favor of the proponent of the will which was followed by a judgment sustaining the will and ordering its probate. The contestant's motion for a new trial was overruled and she appealed in error to this court.

It is further alleged that the petitioner prepared and tendered to the trial judge a bill of exceptions containing all the evidence introduced at the trial on the question of the execution and attestation of the will, but that it did not contain all the evidence relative to the testamentary capacity of the testator, and that there was considerable evidence on this question, which would cost the plaintiff in error in excess of fifty dollars to have transcribed, and as the proponent is only contesting the execution and attestation of the will she deemed it unnecessary to have all the other evidence touching the testamentary capacity of the decedent included in the bill of exceptions, and under the statutes, New Code, secs. 9056, 9057, she designated only that part of the record necessary to try this issue on appeal.

She further alleged that she presented this bill of exceptions containing only the evidence on that issue to the trial judge who refused to sign and authenticate the same because it did not contain all the evidence adduced at the trial. Therefore she prayed for an alternative writ of mandamus to compel the trial judge to sign the bill of exceptions as tendered.

We must deny this petition for two reasons:

(1) Because the technical record is not filed in this Court showing that an appeal was prayed, granted and perfected giving this court jurisdiction to pass on the question. It was necessary for the petitioner to have presented the technical record duly certified by the clerk showing that the appeal in error had been perfected. Smartt v. Woodlee, 5 Tenn. App. 59; Tennessee Procedure by Higgins Crownover, Sec. 2494.

(2) The appellate courts cannot direct the trial judge to authenticate a bill of exceptions that does not contain all the evidence. State ex rel. Terry v. Yarnell, Judge, 156 Tenn. 327,5 S.W.2d 471.

The appellate courts may mandamus a trial judge to sign a bill of exceptions when it contains all the evidence. Tennessee Procedure by Higgins Crownover, secs. 1908-1911, 2493. But this court 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; State 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 application to bills of exceptions. See State ex rel. Terry v. Yarnell, supra. This case was decided long after the Act 1903, Ch. 35, was passed. It would be dangerous practice to permit the plaintiff in error to designate only the evidence that he wanted. It is his duty to prepare the whole bill of exceptions. Moulton v. State, 163 Tenn. 1,41 S.W.2d 373.

Hence the relief prayed in the petition must be denied.

Faw, P.J., and Felts, J., concur.