King v. Miller
67 Tenn. 382
Tenn.
1875
Check Treatment
Turney, J.,

delivered the opinion of the court.

Sec. 1 of ch. 106 of the acts of 1875, entitled “An Act to provide for bills of exceptions, and to regulate the practice when new trials are granted or refused,” was intended to give to the party excepting the benefit of the former trial, and of insisting upon an affirmance of that judgment, to the setting aside *383of which exceptions had been taken without regard to the merits of the case as developed on a subsequent trial. It seems to contemplate the revision by this court of each trial of a cause in the inferior court, however numerous, and from them the selection of such judgment as, in the opinion of this court, should have been the final judgment of the court below, the opinion of this court to be in nowise influenced by facts or circumstances developed in a subsequent trial, of which the judgment insisted upon is not the result. Whether it is within the power of tbe Legislature to pass the statute for these purposes, the result of which would, in some instances, be to cut parties off from the benefit of subsequently discovered and material and controlling evidence, and the party asking a new trial from the advantage of the observation by the judge of the inferior court of the manner and conduct of witnesses, and of his better opportunity afforded by their presence to form correct opinions of their uprightness, we cannot now determine, the question not being presented by this record. We can say, however, the statute does not mean to give appeals from the action of a court simply granting a new trial, nor to change the long-established rule that appeals to this court can only be had from final judgments. This being an attempt to so appeal, the case is not before us, and we can take no jurisdiction of it.

The petition for mandamus is dismissed.