Opinion
March 4, 1958. Certiorari denied by Supreme Court May 2, 1958.
1. Appeal and Error.
Where no bill of exceptions was preserved and each of assignments involved a consideration of facts on which trial judge acted and no relief could be granted on technical record alone, motion to affirm judgment was granted.
2. Bill of Exceptions.
Where evidence is not before the court of appeals preserved by a bill of exceptions the court is compelled to conclusively presume that decree of the trial court is sustained by evidence.
FROM DAVIDSONAppeal from an adverse judgment of the Chancery Court, Davidson County, Ned Lentz, C. On appellee's motion to dismiss the appeal treated as a motion to affirm the judgment of trial court, the Court of Appeals, Shriver, J., held that where no bill of exceptions was preserved and each of assignments involved a consideration of facts on which trial judge acted and no relief could be granted on technical record alone, appellee's motion to affirm judgment would be granted.
Judgment affirmed and cause remanded.
Weldon B. White, Nashville, for complainant.
G.H. Russell, Nashville, for defendant.
This cause is before us on the motion of appellee, Margaret Jacobs Harlib, to dismiss the appeal because appellant has not filed a bill of exceptions, and the time for filing same has expired.
We will treat the motion as one to affirm the judgment of the trial court.
Since the motion was argued orally, we have examined the record, including the twenty-four assignments of error and the supporting brief and argument.
It appears that no bill of exceptions was preserved. Thus, it was impossible for the present attorney to comply with the rules and statutes requiring the preservation of oral evidence in a bill of exceptions and the filing of same in this Court as a prerequisite to a review here of a judgment below involving the facts.
It is not the fault of appellant's present counsel, Mr. G.H. Russell, that this record is in this condition, since he was not employed until after most of the proceedings below had occurred.
We are compelled to grant the motion to affirm because it is manifest that each of the assignments involves a consideration of the facts on which the trial judge acted.
None of the relief sought here can be granted on the technical record alone. If it could, the motion would be denied.
As was said in Fletcher v. Russell, 27 Tenn. App. 44, 177 S.W.2d 854: "The statute requiring bill of exceptions to be signed and filed within time allowed by order not to exceed 60 days from and after adjournment of court is mandatory. Code 1932, sec. 8820 [27-110, 27-111, T.C.A.]. * * * Where evidence was not before Court of Appeals, court was required to conclusively presume that decree of chancellor was sustained by evidence. * * *"
It results that the judgment of the trial court is affirmed at the cost of appellant and his surety and the cause is remanded to the trial court for such other and further proceedings as may be necessary or proper in the premises.
Felts, P.J., and Hickerson, J., concur.