Nashville, C. & St. L. Ry. Co. v. Smith , 147 Tenn. 453 ( 1922 )

Mr. Justice McKinney

delivered the opinion of the Court.

The defendant in error, J. B. Smith, recovered a judgment in the circuit court of Lincoln county against the railway company for one hundred and twenty-five dollars, the value of a dog killed by one of its trains.

This case ivas tried by the circuit judge without the intervention of a jury, and he was requested by the railway company, before the trial, to reduce his finding of facts and conclusions thereon to writing, which he did, and signed and filed same.

From the judgment entered the railway company appealed to this court.

No motion for a new trial was made, and no bill of exceptions filed. The ease is here upon the technical record, which includes the finding of facts by the trial judge.

Preliminarily the defendant in error has entered a motion to affirm the judgment of the lower court for the reason that plaintiff in error did not make a motion for a new trial.

For the plaintiff in error it is insisted that a motion for a new trial was unnecessary, since it is only seeking a reversal for errors of law apparent upon the face of the record.

In Railroad Co. v. Foster, 112 Tenn., 345, 80 S. W., 585, and Insurance Co. v. Witherspoon, 127 Tenn., 366, 155 S. W., 139, it was held that such findings of fact, when signed and filed by the court, became a part of the record under the statute without being incorporated into a bill of exceptions. These cases, however, did not hold that in such a case a motion for a new trial was unnecessary.

The rule of practice announced by this court in its later decisions require a motion for a new trial in all cases except for errors apparent upon the face of the record proper.

In Wise & Co. v. Morgan, 101 Tenn., 276, 48 S. W., 971, 44 L. R. A., 548, it was held, inferentially, that such a motion was necessary as to' all matters arising upon the trial of the case. The court used the following language, to-wit:

“Wise & Co. appealed, and have assigned errors. Plaintiff insists that assignments of error Nos. 1, 2, 4, 10, and part of 11 cannot be considered by this court, because not assigned on the motion for a new trial in the court below, as required by the rule of that court.

“The first assignment in this court is that the circuit court erred in overruling demurrer to plaintiff’s declaration ; second, in sustaining plaintiff’s demurrer to defendants’ second and third pleas.

“Counsel are in error in supposing that it was necessary to embody the question made on the demurrer in the motion for a new trial. The demurrers had been acted on prior to the trial, and the action of the court entered upon the minutes. Since the action of-the court upon the demurrers was in no wise connected with the trial of' the cause, it was not necessary that such matters should again be brought to the attention of the court on motion for a new trial.”

In Railroad Co. v. Johnson, 114 Tenn., 687, 88 S. W., 170, this court defined the meaning of the term “record proper” as “erroneous rulings in sustaining or overruling motions, and demurrers challenging the sufficiency of pleadings.” And in the same case, on page 638 of 114 Tenn., on page 170 of 88 S. W., the court further said:

“The reason why this court will consider errors which appear upon the face of the record proper, without a motion for a new trial, is that they do not directly affect the correctness of the verdict, and would not be cured by setting it aside.”

Applying this test in the instant case, it is apparent that the relief sought here would directly affect the correctness of the verdict. All that the plaintiff in error is asking on this appeal is that the judgment of the trial court be set aside, but not upon any errors committed by the court in passing upon any pleadings before the trial, but for errors of /law committed by the court upon the trial.

Under onr practice, all minute entries are a part of the • record proper, but in Rogers v. Colville, 145 Tenn., 657, 238 S. W., 80, it was held that a motion for a new trial was necessary, notwithstanding the case was heard upon a written stipulation of facts entered upon the minutes of the court, the court saying:

“The stipulation appearing on the minutes does not make a case where the court’s action appears as a part of the technical record so as to take the case out of the rule of cases which ‘harmonizes the practice in all cases coming to this court from the common-law courts.’ ”

Upon principle there can be no difference between a stipulation of facts copied npon the minutes and a finding of facts by the trial judge filed in the case.

If a motion for a new trial is necessary in one case, it is in the other, and with a yiew of making the practice uniform, or, as stated in the case just quoted from, in order to harmonize the practice in all cases coming to this court from the common-law courts, we hold that a motion for a new trial is necessary, with the exception stated by Mr. Justice Shields in Railroad v. Johnson, supra.

It results that the motion to affirm the judgment of the trial court will be sustained.