94 Tenn. 222 | Tenn. | 1895
This cause was tried by the Circuit Judge without the aid of a jury. It is unnecessary to state the facts, as the record presents but one question of any interest, and that is one of correct
It is assumed by the defendant in' error that the cases found in 4 Cold., 405; 2 Lea, 397; 13 Lea, 239, and 7 Pickle, 376, sustain his position. This being so, it becomes necessary briefly to examine them.
Wells v. Mosely., 4 Cold., 402, was a jury case. In that case, there was no motion for a new trial, but, on appeal, this Court reversed and remanded it, for errors of law committed by the Court below, which were apparent on the face of the record, and which affected the merits of the controversy. In
Memphis v. Railroad, reported in 2 Lea, 394, was tried by the Circuit Judge, sitting without a jury. In the course of the opinion of this Court, it is said in passing: “No motion having been made in the Court below for a new trial, if there had been a jury, there could be no error assigned upon the facts, and we take it the same rule must be held to apply when a jury is waived, and the Judge acts both as Judge and jury.” Whether the point had been presented in argument of counsel, or
In Morgan v. Bank, 13 Lea, 234, there is found once more a dictum on this subject. In that case, it seems to have been argued by the defendant in error, as in the case at bar, that there could be no review of the action of the trial Judge try-' ing the case without a jury, because there had been no motion for a new trial in the Circuit Court; and, to this contention, this Court, speaking through Judge Deaderick, says: £‘As to this last proposition, it is correct; but, as we understand the case, the errors complained of are errors of law; and, if errors of law apparent from the record, they might be corrected although no new trial was asked;” and the Court thereupon proceeds to reverse the judgment of the Court below
The last case relied on by the defendant in error is Insurance Co. v. Crunk, 1 Pickle, 376. That, however, was a jury case. In that, the record showed a motion for a new trial and in arrest of judgment, and it was insisted that, inasmuch as a motion in arrest overruled a motion for a new trial, it was as if the latter motion had not been made, and therefore the errors assigned could not be considered on appeal. But this was held to be immaterial, and the Court then restated, in more succinct form, the rule as originally announced in this State in Wells v. Mosely, supra, and proceeded to dispose of the case upon the errors of law assigned.
Thus, it will be seen that the cases which are relied upon by defendant in error do not support his contention, save only as such support may be found in the dicta of the two non-jury cases. In passing, it may be proper to state that these dicta were not embraced in the syllabus of either one of these cases, nor in the index, nor have they been carried forward into our digests, so far ás we can discover. Upon the other hand, the practice has been uniform with the present Court and its immediate predecessors at least, to dispose of all cases appealed from the judgments of the Circuit Judges, rendered without the aid of juries, upon assignments of error, both of law and fact, whether motions for new trials were made in the Court below or0not.
In addition, as was said by Lord Mansfield in Bright v. Eynan, 1 Burr., 394, “most general verdicts include legal consequences as well as propositions of fact, and in drawing these consequences the jury may mistake and infer directly contrary to law, and no one is in so good a position to discover this mistake as the Judge presiding at the trial. ’ ’
It is therefore altogether proper that, in all oases where it is insisted the right has not been reached by the jury’s verdict, the Judge conducting the trial should first be given an opportunity to determine whether justice demands another trial before a differ
That, however, is not this case, as the record gives no intimation of the existence of such a rule of practice in the lower Court. We therefore have considered the errors of fact as well as of law assigned, notwithstanding the absence of a motion for new trial, and now affirm the judgment of the Circuit Judge.