Bostick v. Thomas

137 Tenn. 99

Opinion

Mr. Justice Lansden

delivered the opinion of the Court.

The petition for certiorari in this case is denied because the petitioner failed to make a motion for a new trial in the court below.

The case was tried'before a jury, and pending the trial the defendant below moved the court to direct a verdict in his favor. This motion was disallowed, and the case was submitted to the jury, which returned a verdict for the plaintiff. After this verdict was returned the defendant moved the court to grant him a new trial, and, among other things, assigned as grounds therefor the refusal of the trial judge to grant his motion for a directed verdict. After consideration of the motion for new trial,.the court con- eluded that he was in error in not directing a verdict for defendant, and thereupon granted a new trial, and directed that verdict and judgment he entered for the defendant below. The plaintiff below did not make a motion for a new trial after the foregoing action by the trial judge, but appealed to the court of civil appeals.

A motion for a new trial is necessary to test the correctness of the action of the trial judge in allowing or disallowing a motion for peremptory instructions. Seymour v. Railroad, 117 Tenn., 102, 98 S. W., 174; Barnes v. Noel, 131 Tenn., 131, 174 S. W., 276. Everything which occurs in the progress of the trial and which must be preserved by bill of exceptions must be made the basis of a motion for new trial if complaint is made thereof upon appeal, Railroad v. Ray, 124, Tenn., 28, 134 S. W., 858, Ann. Cas., 1912D, 910; Jacks v. Lumber Co., 125 Tenn., 127, 140 S. W., 1066.

If the trial judge upon the consideration of the motion for new trial deems that he erroneously denied a motion for a directed verdict, it is his duty in considering the motion for new trial to correct such error and direct a verdict. Barnes v. Noel, supra. When such action is taken by the trial judge, the appeal is not from his act awarding the new trial, because such action is not final, and therefore not ap-pealable; but the appeal is from the directed verdict and the judgment thereon. In order for the appellate court to consider the evidence upon which the trial judge directed the. yerdict, it is necessary that there should be a motion for a new.trial. Box Co. v. Gregory, 119 Tenn., 546, 105 S. W., 350; Railroad v. Johnson, 114 Tenn., 632, 88 S. W., 169; Assurance Co. v. Feed Co., 122 Tenn., 655, 126 S. W., 1085; Railroad v. Ray, supra; Railroad Commissioners v. Railway, 123 Tenn., 257, 130 S. W., 768.