Hyter v. Wheland Co.

Full title: ABRAM HYTER and MACIE HYTER v. WHELAND COMPANY

Court: Supreme Court of Tennessee, at Knoxville, September Term (May Session), 1959

Date published: Sep 9, 1960

338 S.W.2d 571 (Tenn. 1960)

338 S.W.2d 571

Opinion

Opinion filed September 9, 1960.

1. APPEAL AND ERROR.

The Supreme Court will not consider any assignment of error which was not made a ground for motion for new trial and seasonably brought to the attention of the trial judge.

2. WORKMEN'S COMPENSATION.

An appeal in a workmen's compensation case is in the nature of a writ of error and not by simple appeal, and therefore, a motion for new trial is necessary, and where parties bringing error in a workmen's compensation case did not file a motion for new trial before the new trial judge, the appeal could not be maintained. T.C.A. secs. 27-303, 27-304, 50-901 et seq.

FROM HAMILTON

LOUIS J. EPSTEIN, Chattanooga, for appellants.

CHAMBLISS, CHAMBLISS HODGE, Chattanooga, for appellee.

Workmen's compensation case. The Circuit Court, Hamilton County, David Tom Walker, Circuit Judge, entered a judgment and error was brought. Defendant moved to dismiss the writ of error. The Supreme Court, Prewitt, Chief Justice, held that an appeal in a workmen's compensation case is in the nature of a writ of error and not by simple appeal, and therefore, a motion for new trial is necessary, and where parties bringing error did not file a motion for new trial before the new trial judge, the appeal could not be maintained.

Appeal dismissed.

MR. CHIEF JUSTICE PREWITT delivered the opinion of the Court.

The defendant below, the plaintiff in error here, has filed a motion to dismiss the Writ of Error filed by the complainants on the ground that the complainants did not file a motion for new trial before the trial judge.

This Court will not consider any assignment of error which was not made a ground for motion for new trial and seasonably brought to the attention of the Trial Judge. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, at page 138, 229 S.W.2d 520, at page 522, 232 S.W.2d 11, at page 12.

In our recent case of Adams v. Patterson, 201 Tenn. 655, 301 S.W.2d 362, we held that an appeal in workmen's compensation case is in nature of writ of error and not by simple appeal, and therefore motion for new trial is necessary. T.C.A. secs. 27-303, 27-304, 50-901 et seq.

This being true the motion must be granted and the appeal dismissed.