OPINION
Thе controlling question on this appeal is whether proof may be adduced in open court, as opposed to depositions, upon a review by cеrtiorari of the action of a beer board in revoking a beer permit.
It may.
Seсtion 57 — 209, T.C.A. governs the revocation of beer permits. Among other things, it provides that a review of an order of revocation is “by statutory writ of certio-rari, with a trial dе novo as a substitute for an appeal.” It further provides that “[t]he provisions of §§ 27-901 — 27-913 shall be applicable in connection with such review.”
Section 27-911 provides, inter alia:
The hearing shall be on the proof introduced before the board or commission contained in the transcript, and upon such other evidence as either party may desire tо introduce; provided, that all proof shall be taken and filed within seventy-five (75) days frоm the date upon which the transcript was filed (Emphasis supplied).
This provision, having the effect of requiring that proof be taken by deposition, was a part of the Code of 1932 and was adopted by the Legislature without prior legislative sanction. Hoover Motor Exp. Co. v. Railroad & Public Util. Com’n.,
In 1932, chancery cases were still being tried on depositions, and this was the “regular”, “usual”, or “ordinary” method and was “according to the forms of chancery.” See, Sec. 556, Gibson’s Suits in Chancery (Fifth
On January 26, 1970, the Court adopted and transmitted to thе General Assembly a new and comprehensive set of Rules of Civil Procedure. Thеse rules were adopted by the General Assembly and became effectivе January 1, 1971.
The advisory commission, the Court as then constituted, and the General Assembly obviously recognized that trial by deposition was a burden upon the justice system, and a costly and outmoded procedure. Accordingly, Rule 43.01 sounded the death knell оf this antiquated practice. It provides:
In all actions at law or in equity the testimony of witnesses shall be taken under oath and orally in open court, exceрt as otherwise provided by these rules, and by T.C.A., Title 24, chapter 9.1
We hold that this Rule oрerates to supersede so much of § 27-911, T.C.A. as provides for taking proof by deposition.
A study of the cases will reveal that the courts have generally ignored this рrovision and have treated § 27-911, T.C.A. as providing that “the hearing shall be on the proof introduced by the board contained in the transcript and upon such other evidеnce as either party may desire to introduce”, remaining silent on the ensuing proviso relating to depositions. Cantrell v. DeKalb Co. Beer Board,
Additionally, our courts have defined “trial de novo” аs used in § 57-209, T.C.A., to mean that “the cause is tried as if it originated in the circuit or chancеry court.” Ewin v. Richardson,
Most assuredly under our present practice and procedure, a trial originating in the circuit or chancery court is tried on oral testimony adduced in open court and not on depositions.
We caution that this decision is not tо be construed as a blanket holding that the Tennessee Rules of Civil Procedure will рrevail over seemingly inconsistent provisions of statutory law. In this vital procedurаl area, having no substantive aspects, we simply hold that it is our belief that the Legislаture, by the adoption of the Rules, intended to finally and forever abolish trials by deposition except to the limited extent exempted from the applicаtion of the Rule. This holding does not prevent trial on depositions by agreement of the parties or pursuant to Rule 43.07.
The judgment of the trial court is reversed and this action is remanded for a trial de novo upon the basis of the record of the testimony before the Beer Board and such other evidence as either party may desirе to introduce. This cause will be advanced on the docket and disposed of forthwith.
Notes
. Section 24-902, T.C.A. permits depositions in civil cases under certain circumstances, none of which are here applicable. Rule 43.07 Tеnn. R.Civ.P., authorizes the Court, on motion, or of its own volition, to order the testimony taken by deposition in certain specified cases, or in such other cases as it may deem proper.