Chattanooga Iron & Coal Co. v. Hanssard

143 Tenn. 553

• Court: Tennessee Supreme Court
• Decided: September 15, 1920
• Status: Published

Opinion

Mr. Justice Green

delivered the opinion of the Court.

The judgment in this case is affirmed because the record contains no motion for a new trial which we can notice.

A minute order recites that a motion for a new trial was made and overruled. Along with the transcript is a written motion which appears to have been filed in the court below. This motion, however, was not spread upon the minutes of the trial court nor Avas it included in the. bill of exceptions. It therefore forms no part of the record.

In Railroad v. Egerton, 98 Tenn., 541, 41 S. W., 1035, it was held that motions for a new trial must be incorporated in the minutes of the court. This holding was apparently affirmed in Railroad Co. v. Johnson, 114 Tenn., 632, 88 S. W., 166.

In Box Co. v. Gregory, 119 Tenn., 537, 105 S. W., 350, it Avas held that under the provisions of chapter 106 of the Acts of 1875, a motion for a new trial might be preserved in the bill of exceptions if proper reference thereto and identification thereof Avas made in a minute order. This is as far as the court has gone and as far as the court can go. It was said in Box Co. v. Gregory that the better practice Avould be to set forth the AAdiole motion on the minutes of the court. If this is not done, the motion must be included in the bill of exceptions, if it is to be relied on in this court.

It has been held in Tennessee since Allen v. State, Mart. & Y., 294, that a memorandum of a motion made below and sent up with the transcript cannot be considered unless made a part of the bill of exceptions.

The general rule in other jurisdictions is that a motion for a new trial must be incorporated into the bill of exceptions in order to be preserved for review on appeal. 14 Enc. PL & Pr., 967; 2 R. C. L., 127.

For the reason stated, the judgment of the trial court is affirmed.