Fletcher v. Russell , 27 Tenn. App. 44 ( 1943 )

Floyd Fletcher filed the original bill against N.W. Russell to recover for a deficiency in acreage in a tract of timber which he had purchased from Russell. Complainant alleged that defendant represented to him that the tract of land contained 60 acres and that he relied on that representation when he bought the timber; that in working over the timber he became convinced that there were not 60 acres in the tract; that he had the land surveyed and discovered that there were only 35.5 acres in the tract of land instead of 60 acres, making a deficiency of 24.5 acres; that he paid defendant for this land at the rate of $13.33 an acre; and he prayed for a decree against defendant for the full amount of this deficiency.

By answer N.W. Russell denied all the material allegations of the bill.

The cause was tried before the Chancellor upon oral testimony pursuant to the provisions of Code, Section 10564, as amended by Pub. Acts 1935, chap. 106, the written stipulation of counsel so to do being filed in the record.

The Chancellor sustained complainant's bill and entered a decree in his favor, adjudging the costs against defendant.

Defendant appealed to this Court and has assigned errors.

Floyd Fletcher has filed a motion to strike the bill of exceptions because: (1) The bill of exceptions was signed and filed sixty-one days from the pronouncement of the final decree in the chancery court and the adjournment of the court in course; and (2) the final decree was rendered September 24, 1942; defendant prayed and was granted an appeal to this Court, and was given thirty days within which to file his bill of exceptions; on the same day the court was adjourned to court in course; thereafter, at chambers, the Chancellor entered a decree giving defendant an additional thirty days from October 24, 1942, within which to file his bill of exceptions. Floyd Fletcher, the appellee, contends that the court was without authority to make this chambers decree.

The motion to strike the bill of exceptions must be sustained on both grounds.

The final decree was entered on September 24, 1942. From that decree defendant prayed and was granted an appeal to this Court and was allowed thirty days within which to file his bill of exceptions. Thereupon, court adjourned on the same day, September 24, 1942, to court in course.

On October 20, 1942, the Chancellor entered a chambers decree giving defendant an additional thirty days from October 24, 1942, within which to file his bill of exceptions. The bill of exceptions was signed by the Chancellor on November 24, 1942, and filed by the Clerk and Master on the same day.

Code, Section 11, provides: "The time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded."

Code, Section 8820, provides: "In all cases of appeal, and appeal in the nature of writ of error from the circuit, criminal, county, and chancery courts to the supreme court, or the court of appeals, the judge or chancellor may, in his discretion, allow the parties time in which to prepare and file the bill of exceptions, not to exceed sixty days from and after the adjournment of the court."

The bill of exceptions in this case was not filed until sixty-one days from the entry of the final decree and the adjournment of the court. It was filed too late. The statute is mandatory. The bill of exceptions must be signed by the trial court and filed by the clerk within the time allowed by the order permitting the filing of the bill of exceptions and in no event can it be filed more than sixty days after the entry of the final order and the adjournment of the court in course. Here the final order was entered and the court adjourned in course on the same day, September 24, 1942. In Scopes v. State, 152 Tenn. 424, 428,278 S.W. 57, 58, the Court said: "Chapter 275 of the Public Acts of 1899 empowered the court in his discretion to extend the time for settlement of a bill of exceptions for as much as 30 days after adjournment. Chapter 49 of the Public Acts of 1917 empowered the court in his discretion to extend the time for settlement of a bill of exceptions for as much as 60 days after adjournment.

"These laws permit the trial court, by proper order, to project his control over the record for a time after adjournment not exceeding the statutory limitations. When the time thus fixed, however, has expired, the power of the court is at an end, as it formerly ended with the adjournment of the term."

We pass to the second ground of the motion. The chambers decree, which was entered after the entry of the final decree, and the adjournment of the court in course, by which the Chancellor attempted to extend the time for the filing of the bill of exceptions was void. The Chancellor had no authority to make that order.

In Buchannon v. State, 177 Tenn. 140, 149, 146 S.W.2d 952, 956, the Supreme Court said: "We held in Beiler v. State,158 Tenn. 404, 14 S.W.2d 51, that the trial judge may, after the thirty day period originally allowed for filing exceptions has expired, if his court is still in session, allow defendant additional time, but in that case the condition that the term had not expired was distinctly recognized. In Humphreys v. State,166 Tenn. 523, 64 S.W.2d 5, it was held that after a bill of exceptions has been signed and the court has adjourned, nothing can be added to or taken from it, this holding not being directly in point, but sustaining the same principle. And see to the same effect Scopes v. State, 152 Tenn. 424, 278 S.W. 57; State v. Dalton, 109 Tenn. 544, 548, 72 S.W. 456; Shaw v. Shaw, 152 Tenn. 360, 363, 277 S.W. 898.

"The rule hereinbefore invoked which permits the court to look to errors of the trial judge in passing upon evidence or in his charge cannot be applied when it appears that the time limitations prescribed by statute upon the filing of the bill of exceptions have not been observed. In such case the court cannot look to the contents of the bill of exceptions at all, even for the purpose of acting upon errors appearing on the face thereof."

Scopes v. State, 152 Tenn. 424, 428, 278 S.W. 57, 58, is directly in point where it was held: "In his discretion the trial judge restricted the time for filing a bill of exceptions to 30 days after July 21st, as appears from an order of that date and thereupon adjourned his court. The time in which a bill of exceptions might be authenticated thus became fixed. The discretion of the court in the matter had been exercised and exhausted. Upon the expiration of the 30 days the authority of the judge in the matter ceased. He could not on September 14th, 55 days after adjournment, sign a bill of exceptions or change his former order respecting same. Such an act was at that time beyond his jurisdiction."

Let the motion to strike the bill of exceptions be sustained.

To pass upon the assignments of error, we must consider the evidence. Since there is no bill of exceptions to which we can look, the evidence is not before us. That being true, we must conclusively presume that the decree of the Chancellor was sustained by the evidence. Code, Section 10622.

All assignments of error are overruled and the decree of the Chancery Court is affirmed with interest and costs. A decree will be entered in this Court accordingly against N.W. Russell and the sureties on his appeal bond.

Felts and Howell, JJ., concur.