Gill v. State Farm Insurance ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT NASHVILLE
_______________________________________________________
)
VICTOR GILL, ) Bedford County Circuit Court
) No. 7488
Plaintiff/Appellant. )
)
VS. ) C. A. NO. 01A01-9701-CV-00010
)
STATE FARM INSURANCE CO., )
)
Defendant/Appellee. )
)
FILED
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From the Circuit Court of Bedford County at Shelbyville. June 20, 1997
Honorable Tyrus H. Cobb, Chancellor, by interchange
Cecil W. Crowson
Appellate Court Clerk
Victor Gill, Pro Se
Plaintiff/Appellant
Andrew C. Rambo, Shelbyville, Tennessee
Attorney for Defendant/Appellee.
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)
Victor Gill appeals from an order of the circuit court granting a motion to dismiss
appeal filed by State Farm Insurance Company (State Farm).
Mr. Gill sued State Farm in the General Sessions Court of Bedford County for an
amount under $10,000 for “breach of contract of insurance in refusing to defend Mr. Gill as a result
of an automobile accident.” Judgment was entered for Mr. Gill in the amount of $1,000 on July 26,
1996 and State Farm perfected a timely appeal to circuit court. Mr. Gill made a request for jury trial
on August 9, 1996. The matter was scheduled for trial in circuit court for December 4 and 5, 1996.
State Farm moved to dismiss the appeal stating that it had deposited the amount of
the judgment rendered, together with interest since the date of entry. Mr. Gill filed a written
objection to this motion. The basis for his objection appears to be that the matter was already set for
trial. The response could also possibly be construed as an attempt by Mr. Gill to perfect an appeal,
which would have been untimely.
In granting State Farm’s motion to dismiss, the trial judge noted that the attempt to
appeal by Mr. Gill was neither timely nor with bond. The clerk was authorized to pay out to Mr. Gill
the judgment amount of $1,000 previously deposited with the court together with interest since the
entry of the judgment.
Any party may appeal from an adverse decision of the general sessions court to the
circuit court within a period of ten (10) days and the appeal shall be heard de novo in the circuit
court. T.C.A. § 27-5-108. Before the appeal is granted, the appellant shall give bond or take the
oath for poor persons. T.C.A. § 27-5-103. As a general rule, an appellant may have his appeal
dismissed at any time the cause remains within the jurisdiction of the appellate court. The appellee
cannot object, nor is his consent required. Fort v. Fort, 118 Tenn. 103 (1907). In discussing that
decision, the court noted in Federal Firefighters of Oakridge v. Roane-Anderson Co., 206 S.W.2d
369, 370 (Tenn. 1947), an exception to the general rule where the appellee is prejudiced thereby.
It would appear in the present case that Mr. Gill wished to proceed with the trial in
the circuit court because he was dissatisfied with the amount of the judgment entered in general
sessions court. This issue was before this Court previously in Day v. Hagler, No. 105 (Tenn. App.
June 25, 1985), by the Western Section of this Court sitting at Knoxville. The issue in that case was
whether a party appealing to circuit court from a general sessions judgment against him may dismiss
his appeal when so doing would prevent his non-appealing adversary from possibly proving
additional damages in circuit court. In affirming the dismissal, this Court said that the law is clear
that a party appealing a general sessions judgment to circuit court has the right to dismiss the appeal
at any time prior to trial in circuit court. Citing C. B. Donaghy & Co. v. McCorkle, 118 Tenn 73,
98 S.W. 1050 (1907); Storie v. Griffin, 164 Tenn. 596, 51 S.W.2d 488 (1932). The court further
noted that there was no apparent injustice because the additional expense sought by plaintiff in the
circuit court arose after the general sessions judgment would have been final had there been no
appeal. Although that is not the situation here, any prejudice suffered by Mr. Gill was due to his own
failure to perfect a timely appeal from the general sessions judgment if he was dissatisfied.
The judgment of the trial court is affirmed. Costs of this appeal are taxed to Mr. Gill,
for which execution may issue if necessary.
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FARMER, J.
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HIGHERS, J. (Concurs)
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LILLARD, J. (Concurs)