Goans v. Producers Transport Co. , 1973 Tenn. App. LEXIS 240 ( 1973 )

OPINION

PER CURIAM.

This appeal involves the ownership and/or right to possession of a tractor.

It affirmatively appears the exhibits attached to the bill of exceptions were not timely filed. Order overruling motion for new trial which granted 90 days to file the bill of exceptions was entered on October 16, 1972. The bill of exceptions was signed by the chancellor and filed in the clerk’s office on January 9, 1973, but the exhibits were not identified and authenticated by the chancellor until January 18, 1973, 94 days after the entry of the order overruling motion for new trial. So we find on the face of the exhibits it is affirmatively shown they are filed four days late causing the bill of exceptions to be incomplete leaving only the technical record before this Court.

“It is settled by repeated decisions of our Supreme Court that the contents of a bill of exceptions cannot be considered for any purpose by appellate court unless it affirmatively appears that it was authenticated by the trial judge and filed with the clerk within the time allowed by law. Jackson v. Bell, 143 Tenn., 452, 455, 226 S.W. 207; Hinton v. Insurance Co., 110 Tenn., 113, 118, 72 S.W., 118; Cronan v. State, 113 Tenn., 539, 542, 82 S.W. 477; Bundren v. State, 109 Tenn., 225, 230, 70 S.W., 368; Wright v. Redd Bros., 106 Tenn., 719, 721, 63 S.W., 1120; Jones v. Moore, 106, Tenn., 188, 190, 61 S.W., 81; Muse v. State, 106 Tenn., 181, 183, 61 S.W., 80.

“This rule, of course, applies to the entire bill of exceptions, and therefore, in order to make exhibits a part of the bill of exceptions it must affirmatively appear that they were authenticated as such by the trial judge and filed by the clerk within the prescribed period.” Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394, 402.

It is clear from the above that all and any part of the record must not only be timely approved by the trial judge but same must be filed with the clerk in the time prescribed.

In this case the late exhibits are essential to the consideration and determination of the issues involved. Included among the several exhibits is the very agreement or contract under which the complainant bases his claim of ownership to the tractor.

Since all of the assignments of error are dependent upon the consideration of facts and none are directed solely to matters contained in the technical record, we find ourselves with no choice except to affirm the judgment as entered below. Wilson v. Hafley, 189 Tenn. 598, 226 S. W.2d 308; Kyritsis v. Vieron, 53 Tenn.App. 336, 382 S.W.2d 553.