Cobble, Admr. v. International Agri. Corp. ( 1925 )

FAW, P. J.

Dock Cobble, Administrator of the estate of Ligón Cobble, deceased, sued the. International Agricultural Corporation, in the circuit court of Maury county, to recover damages for the alleged wrongful and negligent killing of his intestate.

The plaintiff below has attempted to bring the case to this court by an appeal in the nature of a writ of error, and pursuant thereto a transcript of the record was filed in this court on January 23, 1925; but we have reached the conclusion that the appeal must be dismissed, for the reason that it does not appear from the transcript of the record certified to this court that there was a judgment entered of record in the court below.

When the case was reached and called for hearing on the regular call of the docket in this court, the International Agricultural Corporation, through its counsel of record, presented a motion, theretofore filed, to dismiss the appeal and affirm the judgment of the circuit court on the ground, asserted in the motion and supporting brief, that the assignment of errors filed by the plaintiff in error was not “in accordance with the rules of this court” and amounted to “no assignment of errors.”

The record was handed in and the 'motion was taken under advisement, and since that date, bixt before further action by the court, the plaintiff in error, through his counsel, has filed a motion (supported by affidavits of counsel) for leave to file additional assignments of error and brief in support thereof, and to have the case passed over and heard,at the September term of this court.

The record is not in a condition to justify the grant of either of said motions. Without a judgment of record in the trial court the appeal was premature.

The technical record shows the pleadings, and an entry on the minutes under date of December 15, 1924, from which it appears that a jury was empaneled and sworn, a portion of the proof heard, and the jury was respited nntil the following day,.

There also appears in the transcript, following the bill of exceptions, a purported order of the court containing a motion of the plaintiff for a new trial, and the order of the court overruling same, the plaintiff’s exception and prayer for an appeal, the grant of an appeal, and the grant of thirty days ’ time to the plaintiff in which to “make up his bill of exceptions and perfect same.” This purported order appears to have been “filed December 23, 1924” by the circuit court clerk, but it bears no caption, and there is no notation in the transcript tending to show that it was at any time entered on the minutes. However, our holding that the appeal was premature is not based on the failure of the transcript to show that this last mentioned order was entered on the minutes so much as on the failure of the record proper (aside from the bill of exceptions) to show that there was a judgment in the case.

There is a bill of exceptions in the transcript, signed by the trial judge and marked filed by the clerk, and if we could consider matters appearing in said bill of exceptions as taking the place of the judgment roll, or technical record, it would appear that, at the close of the plaintiffs proof (on December 16, 1924), the court, in response to a motion of the defendant, peremptorily directed the jury to return a verdict for the defendant, which was done, and the court thereupon ‘ ‘ ordered that the cause stand dismissed and that the defendant have and recover of the plaintiff the costs of this cause,” for which execution was awarded.

The judgment of the court has no place in the bill of exceptions. The inclusion of the recital of a judgment therein does not vitiate the bill of exceptions, but it cannot take the place of a judgment on the minutes of the court and its proper certification as a part of the technical record on appeal. A bill of exceptions is in no sense an essential part of an appeal, or appeal in the nature of a writ of error. An appeal or an appeal in error may be properly perfected and prosecuted without a bill of exceptions. Patterson v. Patterson, 89 Tenn., 151, 153.

Minute entries are a part of the record without a bill of exceptions. Nashville Railway & Light Co. v. Trawick, 118 Tenn., 273, 276; 2 R. C. L., pp. 124-125.

The record proper consists of the process, the pleadings, the entries on the minutes, including the judgment, all cost bonds and appeal bonds, and the bill of costs.

“The office of the bill of exceptions is to put in permanent form and bring into the record that which transpires during the trial of a cause, and which is no part of the record proper.” Darden v. Williams, 100 Tenn., 414, 415.

“An appeal from tbe judgment of a circuit court means an appeal from the conclusions and orders of that court as expressed upon the record book, these conclusions or orders being the deductions drawn by the court from the evidence in detail, of which they are the fruits.

“A bill of exceptions is submitted by the party dissatisfied with the judgment of the court, and, as the name imports, is an objection to the action of the court containing the grounds of such objections, in order that a revising court may pass upon the correctness of the judgment dissented from — this is its only office.” 5 Heisk., 75, 77.

“It is not the office of a bill of exceptions to preserve minute entries, and take the place of the minutes of the court.” Railroad v. Egerton, 98 Tenn., 541, 543. See also Railroad v. Johnson, 114 Tenn., 632, 640.

It has also been held that a recital in a bill of exceptions that an appeal has been granted is not sufficient. Teasdale & Co. v. Manchester Produce Co., 104 Tenn., 267, 269.

A bill of exceptions is not a proper medium through which to certify to the appellate court matters which must necessarily be a part of the original record in the case. 2 R. C. L., page 140.

In the Encyclopedia of Pleading and Practice, Vol. 3, pp. 404-406, it is said: “It is a general rule of appellate procedure that a bill of exceptions is useless, and indeed none should be brought up to the appellate court, where all the facts constituting the alleged error appear on the face of the record proper. The reason for this rule is obvious, since the only purpose of the bill is to bring before the court in an authenticated manner facts which in the ordinary course of proceeding would not otherwise appear of record in the case. . . . But it should be remembered that the bill of exceptions, having the purpose above noted, authenticates for the action of the upper court only those proceedings which are not a part of the record proper. It follows therefore, that it cannot be used to certify matters regularly embraced in the record proper, which is com-' piled and certified up by the clerk. When the bill of exceptions embraces matters which in regular course ought to be in the record proper, they will not be considered on appeal.”

In the Notes to the text last quoted, it is stated, on the authority of three Mississippi cases, that a judgment cannot be certified up by a bill of exceptions. And upon the authority of seven Alabama cases cited, it is there said that the action of the trial court on the pleadings and other matters which are a part of the record proper cannot be reviewed on appeal, where they are recited only in a bill of exceptions, unless made in a transcript of the record proper,.

Again in the Encyclopedia of Pleading and Practice, Vol. 2, page 267, it is said: “The transcript must contain copies of the verdict and judgment appealed from. Without them it is inherently defective, and the appeal will he dismissed.”

In the ease of Diener v. Star-Chronicle Publishing Co., 230 Mo., 613, 33 L. R. A., New Series 216, 218, the court said: “If the ruling on the demurrer, the demurrer itself, and the trial petition had been preserved no where else than in a bill of exceptions, this appellant would have nothing here to review; for if anything is settled, it is that such matter has no place in a bill of exceptions. It is part of the record proper, and if it appeal's only in such bill, it is the same as if it did not appear at all.”

The distinction between the technical record and the bill of exceptions, and the necessity for a complete transcript of the technical record, independent of the bill of exceptions, is pointed out in certain rules adopted by the Supreme Court, at the instance of the Attorney-General, for the guidance of clerks in making up transcripts for the Supreme Court in criminal cases. These rules are published in 132 Tenn., pp. 719-721, and we cjuote therefrom a brief excerpt as follows:

“First: Each transcript is composed of two distinct parts: (1) the TECHNICAL RECORD, and (2) the BILL OF EXCEPTIONS. The complete Technical Record must be copied first, and then the complete Bill of Exceptions. The two parts must not be mixed in the transcript.

“Second: The TECHNICAL RECORD is composed of all the Minute Entries pertaining to the ease, including the indictment.”

While-the rules just mentioned are applicable to criminal cases only, the excerpt which we have quoted therefrom could appropriately apply, under the authorities, to civil cases coming from a law court.

Now, bearing in mind the different offices to be performed by the technical record and the bill of exceptions, we feel compelled, in the light of the authorities cited, to hold that the transcript in the instant case does not show that there was a judgment rendered by the circuit court. We are therefore without jurisdiction of the case, because the appeal'was premature. An appeal from a circuit court in a law case lies only from a final judgment. There can be no appeal in such case without a judgment. Butcher v. Palmer, 4 Cold., 248; Nolin v. State, 6 Cold., 12; Sharp v. State, 117 Tenn., 537. An appeal will not lie from the order of the trial court overruling the motion for a new trial; the appeal is from the judgment. Railroad v. Ray, 124 Tenn., 16, 28. “The absence of a judgment cannot be supplied in this court.” Sharp v. State, supra.

An order will be entered dismissing the appeal of the plaintiff and remanding the case to the circuit court of Maury county. The plaintiff Dock Cobble, Administrator, will pay the costs of the transcript and the costs accrued in this court, as provided in Shannon’s Code, section 4957.

October 10, 1925. Crownover and DeWitt, JJ., concur.