Anderson v. Sanderson , 25 Tenn. App. 425 ( 1941 )

On Petition for Rehearing. By petition for a rehearing William Sanderson seeks a reversal of our former judgment and an affirmance of the judgment below, or a remand for additional evidence.

The petition makes no new argument, cites no new authority and points out no material fact as overlooked. Such a petition should be denied. Badger v. Boyd, 16 Tenn. App. 629, 645,65 S.W.2d 601; Louisville N.R.R. Co. v. United States Fidelity Guaranty Co., 125 Tenn. 658, 691-693, 148 S.W. 671; see 167 Tenn. 702, 703; Melody v. Hamblin, 21 Tenn. App. 687, 705,115 S.W.2d 237.

In aid of the application for a rehearing and a remand petitioner has annexed to his petition an affidavit of the Honorable E.F. Langford, the learned trial judge, who tried the case below. This affidavit, among other things, states that there was no dispute as to the testimony of the plaintiff, William Sanderson, which was stated by his counsel to the court, and which was to the effect that he had engaged in only three transactions involving the purchase of notes.

Manifestly we cannot look to this affidavit to supplement the bill of exceptions. Cosmopolitan Life Ins. Co. v. Woodward,7 Tenn. App. 394, 402, 408, 409; Sweeney v. Carter, 24 Tenn. App. 6, 11, 12, 137 S.W.2d 892. It was our imperative duty to try the case upon the facts shown in the bill of exceptions and the applicable law. A remand will not be made to let in evidence which was not properly preserved in the bill of exceptions. Lyon v. Crabtree, 16 Tenn. App. 42, 46, 64 S.W.2d 24.

The petition is denied at the cost of petitioner.

Crownover, P.J., and Howell, J., concur.