Pelican Assurance Co. v. American Feed & Grocery Co., 122 Tenn. 652

Pelican Assurance Co. v. American Feed & Grocery Co.

122 Tenn. 652 | Tenn. | 1909

Mr. Chief Justice Beard

delivered the opinion of the Court.

The question here involved is the same that was considered and disposed of in Hall v. State, 110 Tenn., 366, 75 S. W., 716. In that case, as in this, the minute entry was that the defendant moved “the court in arrest of judgment 'and for a new trial;” and it was there held that, whether the motion was single, “embracing two distinct, if not incongruous, matters of procedure,” or the entry was construed as the “equivalent of a recital of the two motions,” yet the necessary inference would be “that the motion in arrest was first made, and . . . ivas disposed of first.” In this condition of the record, the court applied the rule that the making of motion in arrest prior to the motion for a new trial was a waiver of the latter motion, and the legal effect of this waiver was that the court on appeal was “confined to error assigned on the face of the record.”

In the case at bar errors are assigned upon the action of the trial judge in admitting over objection incompetent testimony, in overruling a motion for peremptory instruction, in giving certain instructions to the jury, and failing to grant requests that were submitted. It will be observed that these errors, if committed, occurred in the trial of the cause, and would have constituted grounds of a motion for a new trial, made in the court below, to the end that a retrial might be obtained, or, failing in this, then to preserve the same in the record, so that the ruling of the trial judge in de-*655dining the motion might be preserved to the plaintiff in error. Railroad v. Johnson, 114 Tenn., 633, 88 S. W., 169. Resting npon matters extrinsic to the technical record, they could only be preserved for review in this court by a properly filed bill of exceptions. If, as is contended by counsel for plaintiff in error, they can here be made the subject of investigation, by reason of the motion in arrest having been overruled, then we can see no distinction between that and a motion for new trial; for the very errors that are now made the subject of complaint are those which would have been properly raised on this latter motion. It is apparent that, to secure a reversal on account of these errors, it would be necessary to look beyond the “face of the record” into the evidence introduced. This cannot be done. It is well settled by the authorities that a motion in arrest of judgment lies alone for some error which vitiates the proceeding, or is of so serious a character that judgment should not be rendered. It “can only be maintained for a defect upon the face of the record, and the evidence is no part of the record for this purpose.” Bond v. Dustin, 112 U. S., 604, 5 Sup. Ct., 296, 28 L. Ed., 835; Van Stone v. Stillwell E. T. C. Co., 142 U. S., 128, 12 Sup. Ct., 181, 35 L. Ed., 961; 23 Cyc., 825.

Applying this rule of correct procedure to the present case, it follows that the judgment must be affirmed.