Hinton v. Insurance Co. , 110 Tenn. 113 ( 1902 )

Mr. Justice Neil

delivered tbe opinion of tbe Court.

This suit was begun on tbe 22d day of May, 1902, before a justice of tbe peace of Davidson county, on a policy of insurance for $156. In that tribunal the cause was decided in favor of the defendant, and from this judgment the plaintiff presented an appeal to'the circuit court of the county.

In that court the cause was again tried, and judgment rendered in favor of the plaintiff on May 26, 1902, for $157.67, being the original sum sued for, with interest, and for all of the costs of the cause. On July 19,1902, a motion for a new trial was made and overruled, whereupon the defendant insurance company prayed and ^as granted an appeal to this court, and was allowed ten days to file a bill of exceptions; but that bill of exceptions was not filed until August 5, 1902, which was seventeen days after July 19th, and seven days beyond the time allowed.

The rule is that, when time is allowed to file a bill of exceptions, and it is not filed until after the time has elapsed, it cannot be looked to on the trial of the cause in this court (Muse v. State, 106 Tenn., 181 61 S. W., 80; Jones v. Moore, 106 Tenn., 188, 61 S. W., 81), and in such a case no other result can follow in this court, so far as depends upon the matters which should be contained in the bill of exceptions, except an affirmance of the judgment of the court below. Wright v. Redd Bros., 106 Tenn., 719, 63 S. W., 1120.

It is true that the cases just cited were addressed to chapter 275, Acts 1899, which was enacted for the purpose of allowing time after the adjournment of court for the preparation of bills of exceptions, while in the case béfore us it does not appear whether the ten days allowed would have carried or did earry the case beyond the adjournment of the term. But the principle is clear that, when time is allowed for the filing of a bill of exceptions, it must affirmatively appear that it was filed within that time; otherwise this court cannot look to it.

Again, if we should concede that the bill of exceptions could be lawfully filed after the expiration of the ten days, and within the term, it does not affirmatively appear that August 5th was within the term; and this fact we should be enabled to determine from the record, but this record we have before us is silent upon the subject. All that we have is that ten days were allowed for the filing, and the filing did not take place until seventeen days had elapsed. So, prima facie, in any event, the bill of exceptions was filed top late, and there is nothing in the record to rebut this presumption against it.

While a bill of exceptions may be properly made up at any time during the term, if there be no rule or order to the contrary in the court in which the case was tried (Patterson v. Patterson, 89 Tenn., 151, 14 S. W., 485), yet a party is not entitled as a matter of right to the whole of the term in which to present it. Mallon v. Tucker Mfg. Co., 7 Lea, 62, 66; Sikes v. Ransom, 6 Johns., 279.

In Mallon v. Tucker Mfg. Co., it was held that a general rule was not unreasonable which fixed fifteen days as the limit within which bills of exceptions were required to be presented after the verdict of the jury, or after the decision of the cause by the judge in non-jury cases. We see ño reason wby an order limiting the time for such preparation and filing may not be made in individual cases, and why, in the absence of a compliance with such order, the right to file may not be denied altogether. Without doubt the right to make such order would be of the greatest service to the parties in many cases where the terms of courts are long, and the facts in the cases supposed are numerous and complicated, and the questions arising-are many; such cases, in short, as would in all probability soon slip from the memory of the circuit judge, and make the preparation of the bill of exceptions a work of an exceedingly uncertain and unsatisfactory nature. Indeed, the conceded right to make such an order giving reasonable time, applicable to all cases, necessarily involves and includes the right to make it in each individual case, on the principle that that which is just as to the whole is just as to each of the parts composing that whole.

Moreover, even in the absence of such general order, no question of unfair discrimination could arise between different cases in the same court, because, while a limiting order may not be made in one case, yet may be made in another, there is always to be determined by this court the question of the reasonableness of the length of time given, which must to a great extent be measured by the nature of the case itself.

Applying the principle to the present case, the court can see that the facts are so few, and the record so small, the time allowed for the preparation of the bill of exceptions was not only reasonable, but most ample.

The bill of exceptions not having been filed in time, this court cannot look to it, and hence, as the record now stands, there is nothing to show error in the judgment of the court below.