Opinion
Opinion filed October 8, 1954.
1. APPEAL AND ERROR.
Where alleged error is asserted to be apparent on face of technical record, motion for new trial is not a prerequisite to removal of the case to the reviewing court.
2. APPEAL AND ERROR.
No prayer for an appeal or any order granting an appeal is a prerequisite to filing record for writ of error.
3. APPEAL AND ERROR.
A writ of error lies in all cases where an appeal in the nature of writ of error would have lain.
4. APPEAL AND ERROR.
Though a party fails to take an appeal in error he may still file record for writ of error.
5. APPEAL AND ERROR.
Where alleged error was asserted to be apparent on face of technical record, writ of error would not be dismissed by the Supreme Court either because there was no motion for new trial of record in the cause, or because there was no prayer for an appeal or an order granting an appeal on file in the record in the cause.
FROM SUMNER.ROBERT F. BRINKLEY, of Gallatin, for plaintiff in error.
J.L. LACKEY, W.C. DAVIDSON, and R.H. POLK, all of Nashville, for defendants.
The Circuit Court of Sumner County, W.P. PURYEAR, JR., Judge, entered judgment adverse to plaintiff, and plaintiff brought error. The defendants filed a motion to dismiss the writ of error. The Supreme Court, SWEPSTON, Justice, held that where alleged error was asserted to be apparent on face of technical record, writ of error would not be dismissed by the Supreme Court either because there was no motion for new trial of record in the cause, or because there was no prayer for an appeal or an order granting an appeal on file in the record in the cause.
Motion overruled.
The defendants have filed a motion to dismiss this writ of error, or in the alternative to strike it on two grounds: First, that there is no motion for a new trial of record in the cause, and second, that there is no prayer for an appeal, nor is there an order granting an appeal on file in the record in this cause.
This motion must be overruled for the reason first, that the alleged error is asserted to be apparent on the face of the technical record in which case a motion for a new trial is not a prerequisite to the removal of the case to the Appellate Court (See: — Gilreath's ed., Caruthers' History of a Lawsuit, Section 433), and for the further reason no prayer for an appeal nor any order granting an appeal is a prerequisite to filing the record for a writ of error. A writ of error lies in all cases where an appeal in the nature of a writ of error would have lain. So that if a party fails to take an appeal in error he has still another chance which is to file the record for a writ of error (Idem, Sections 446 and 448, last paragraph on page 491).