State Ex Rel. Swink v. Mayo ( 1928 )

The bill was filed upon relation of citizens of Madison County under Chapter 11, Acts of 1915, to oust the defendant from the office of Chairman of the County Board of Education. The cause was heard by the Chancellor at the June Term, 1927, upon oral testimony and a final decree entered. The decree entered June 23, 1927, under the caption of the June Term, reads:

"This cause came on to be heard before the Honorable TOM C. RYE, Chancellor, on this June —, 1927, on the bill of complaint seeking to oust the defendant from the office of member of the County Board of Education of Madison County, and from the office of the Chairman of said Board, the answer of defendant, the testimony of witnesses examined in open court, the exhibits and argument of counsel and the entire record in the cause, and after due consideration of all of which the Court is of the opinion and finds that the defendants, Robert C. Mayo, has not knowingly or wilfully misconducted himself in office and has not knowingly or wilfully neglected to perform any duty enjoined upon him by law, and that he is not guilty of the charges set forth in the bill of complaint for the commission of which it is sought to oust him from his office, and that the bill should be dismissed at the cost of the relators. It is therefore ordered, adjudged and decreed that the complainant's bill be and the same is hereby dismissed."

Appeal was prayed and granted and thirty days allowed the complainant "in which to perfect the appeal and file appeal bond." It does not appear that any time was asked within which to file a bill of exceptions required to preserve the oral testimony. A bill of exceptions was filed December 2, 1927. The defendant moved to strike the bill of exceptions. Complainant replied that the June Term was not adjourned in course, but remained open until the regular December Term, and the bill of exceptions was verified and filed during the June Term.

The Terms at Jackson are fixed by Statute for the first Mondays of June and December. The regular June Term expired when the Chancellor in obedience to Statute opened the August Term, within his Chancery Division, in Carroll County. The Term in Carroll was followed by regular terms of Court in three or more other Counties of the Chancery Division during the months of August, September and October.

For the public convenience the Chancellor did not abandon the business of the Court at Jackson when the June Term expired, but exercising authority under Chapter 551, Acts of 1909, the Court was adjourned to such future days as he might be able to hold the Court at Jackson without conflict with the other terms of Court in the Division. The effect of these adjournments was not to keep the June Term open. They were distinct from the June Term. See Shannon's Code, Sec. 5745; Lieberman, Loveman Cohn v. Knight, 153 Tenn. 273. What could have been done at the preceding June Term only, could not be done at any of these special or adjourned dates or terms. Garner v. Carroll, 7 Yerg., 365; Staggs v. State, 3 Humph., 375.

In order to preserve exceptions a record must be made up, signed and filed during the term at which the case was tried or within the time allowed for filing the bill of exceptions. Dunn v. State, 127 Tenn. 272; Rhinehart v. The State,122 Tenn. 698; Miller v. Railroad, 1 App. Cas., 88.

No bill of exceptions was filed during the June Term of Court at Jackson, but after that term expired and during a special or adjourned term held after expiration of the June Term. The motion to strike the bill of exceptions must be sustained.

Complainant's only assignment of error relates to the action of the Court in holding the facts insufficient to oust the defendant and in dismissing the bill. In the absence of a duly authenticated record preserving the evidence and filed within the time prescribed by law, the facts cannot be reviewed on appeal.Railway Light Co. v. Trawick, 118 Tenn. 273; Scopes v.The State, 152 Tenn. 424.

It must be presumed that the evidence justified the decree of the Chancellor.

Special Justice TIMBERLAKE took no part in the consideration of the case. Affirmed.