82 Tenn. 96 | Tenn. | 1884
delivered the opinion of the court.
Mary L. Utley, then an infant, had, by next friend, brought suit in the circuit court against John R. Kirkpatrick for damages for his mal-practice as a physician and surgeon, whereby she had -lost an eye, and, on October 17, 1867, recovered a- judgment against him for $3,500 and costs. This bill was ' filed on the 18th of March, 1868, by Kirkpatrick against Mary L. Utley, to set aside the judgment and obtain
The -record of the suit at law shows that' the defendant recovered her judgment .against the complainant on October 17, 1867, that two days thereafter the complainant’s motion • for a new trial was overruled, and that on the same day the court adjourned to the court i-n course. It further shows that the complainant filed a transcript of the record in this court as upon an appeal, but that the cause was ordered by this court to be stricken from the docket because “ there was no prayer for an appeal from the judgment of the court below.” The minutes of the circuit court show that on October 19, when there was an adjournment to the court in course, an order was made for a special term to begin on the fourth Monday in November following, and that this entry was also made: “It is ordered by the - that in all cases in which bills of exceptions are not signed and bonds given, that parties have until the 20th day of November, 1867, in which to sign and to give appeal bonds, and when so done the same shall be and form a part of the record in said cause so signed.” The bill of exceptions prepared in the case of the defendant against the complainant was not signed until November 30, 1867. It does not include the charge of the judge, nor any. request for a special charge, nor show that it contains all the evidence.
“Courts of equity,” says Judge McFarland, “exercise the right of granting new trials with caution,
The decision of this court upon the demurrer to the present bill must be held to have adjudged that the bill contained sufficient equity to require an answer: McNairy v. Nashville, 2 Baxt., 251; Rodgers v. Dibrell, 6 Lea, 69. In this view, if the proof, upon answer filed, established the facts upon which the equity, of the bill rested the complainant would be entitled to a new trial. The chancellor and Referees have found that the evidence failed to sustain the
The other point is embodied in the complainant's fourth exception: “ The Referees are in error in finding that the proof fails to sustain the proposition of jurisdiction as set out in- the opinion of the commission." This case, when it came to the Supreme Court by appeal from the decree of the chancellor on the demurrer, was tried by the commission court created by-the Legislature to hear and decide causes transferred to them by consent of parties. In the opinion
The Referees set out in their report the allegations •of the bill referred to • by the commission court, and find that they are not sustained by the proof. The allegations are, in substance, that complainant’s counsel, “ two, or three weeks before the adjournment of the ■court,” made out a bill of exceptions, and handed it to one of the opposing counsel, who desired to consult the principal counsel, then sick in the country; that •the counsel grew worse and died, the bill of exceptions being still retained by the opposing counsel; that the judge of the circuit court in the meantime was seen, and complainant’s counsel was led to believe that there would be no difficulty in having the bill of exceptions properly signed, and in fact that impression was made upon complainant’s counsel by the assistant ■counsel of defendant; that the court being held open
The proof is that -the bill of exceptions was not made out by the complainant’s counsel until the court had actually adjourned, nor handed to the opposing counsel until October 25, when he, according ■ to his testimony, knew of the adjournment. The principal counsel of the defendant was taken sick on October 25, and died November 6. 'The bill of exceptions was returned' to complainant’s counsel about November 14, who procured the signature of the judge on November 30. There is not a particle of proof. that, in the meantime, the judge was seen and said or did anything to lead complainant’s counsel to believe that there would be no difficulty in having the bill of exceptions signed, nor any proof that defendant’s assistant counsel said anything to make a similar impression upon complainant’s counsel, if, indeed, belief and impression, either or both, amount to an averment of facts. There is no proof, even if admissible, that objection was taken to the bill of exceptions in the Supreme Court as signed after the adjournment of the circuit court. And, as we have seen, there is no sat
The truth probably is, that the court having, ordered a special term for the fourth Monday of November, it was thought the general order providing for the signing of bills of exceptions, and execution of bonds of appeal on November 20, during that special term, would be valid for those purposes. And the complainant, by exceptions to the report of the Referees, undertakes to make the point that the complainant is entitled to a new trial if misled by the action of the circuit judge in this regard. But no such point is made in the bill. The right to • relief is there rested upon the delay occasioned by the defendant’s counsel in obtaining the judge’s signature during the term, and upon the allegation that the complainant’s counsel was led to “believe” there would be no difficulty in having the bill, of exceptions signed by seeing the judge, and by an “impression” made upon the same counsel by the assistant counsel, of the defendant, which we have already considered. The order of court giving time to file bills' of exception immediately follows the entry in Utley v. Kirkpatrick, overruling the motion for a new trial, some of the counsel saying in argument that it is under the same heading. The order was almost certainly procured by
The bill of exceptions made a part of the bill does not embody the charge of the court, nor show that it contains all the evidence. It is difficult to see, therefore, why the case does not fall within the express language of this court quoted from Seay v. Hughes. It is unnecessary to determine the • point in this case, for we fully conour with the majority of the Referees in the opinion that the evidence in this record, the bill of exceptions inclusive, does not sustain the bill on the mei’its of the litigation at law. The new proof makes a stronger case than is made by the bill of exceptions, and there is sufficient evidence- in the bill of exceptions to sustain the verdict of the jury.
The exceptions to the Referees’ report must be •overruled, and the decree of the chancellor affirmed with costs.