Opinion
Opinion filed October 5, 1940.
1. APPEAL AND ERROR.
Where equity suit was heard upon pleadings and stipulation of facts, depositions on file, oral testimony of witnesses examined in open court, and entire record at large, cause was not heard in compliance with statute, and hence a motion for new trial was necessary before case could be reviewed by appeal to Court of Appeals (Code 1932, sec. 10564).
2. CERTIORARI.
Where defendants in equity suit appealed to Court of Appeals after chancellor set aside a conveyance upon a cross-bill, and no motion for new trial was made, Supreme Court could not, on petition for certiorari, reverse decree of Court of Appeals, which affirmed chancellor's decree without considering case upon merits, and dismiss appeal for failure to enter motion for new trial, where cross-complainant did not file petition for writ of certiorari (Code 1932, sec. 10564).
3. CERTIORARI.
No error of Court of Appeals, either of commission or omission, can be reviewed by Supreme Court except upon petition for certiorari, and erroneous pretermission of material questions by Court of Appeals must be brought up in same way that erroneous disposition of such points is brought up to permit a review by Supreme Court.
4. APPEAL AND ERROR.
Where depositions were taken and filed in equity case, depositions became part of record, and fact that subsequently, by agreement, oral testimony was submitted to chancellor did not have effect of eliding depositions from record, so as to require their incorporation into a bill of exceptions in order to make such testimony available in appellate court (Code 1932, sec. 8967).
5. APPEAL AND ERROR.
Where equity suit was heard upon pleadings and stipulation of facts, depositions on file, oral testimony of witnesses examined in open court, and entire record at large, a bill of exceptions was necessary to preserve oral testimony and exhibits to such testimony as well as to bring up stipulation of facts, and hence on appeal Court of Appeals did not err in affirming chancellor's decree, without considering case upon merits, on ground that it affirmatively appeared in bill of exceptions that it did not contain all evidence, where bill did not contain exhibits and stipulation of facts (Code 1932, secs. 8967, 10564).
FROM ROANE.Appeal from Chancery Court of Roane County. — HON. J.H. WALLACE, Chancellor.
Proceeding by Charles M. Rose against J.O. Brown and others, wherein upon the cross-bill of Miller Motor Company the chancellor set aside a conveyance of land which J.O. Brown fraudulently conveyed to his wife, and Mr. and Mrs. Brown appealed to the Court of Appeals, which affirmed the chancellor's decree. On petition to Supreme Court for a writ of certiorari. Petition denied.
R.H. WARD, of Kingston, for complainant.
TINDALL TINDALL, of Kingston, for defendant.
Upon the cross-bill of the Miller Motor Company, the chancellor set aside a conveyance of a tract of land which J.O. Brown fraudulently conveyed to his wife, Ollie Brown. Mr. and Mrs. Brown prosecuted an appeal to the Court of Appeals. That court affirmed the decree of the chancellor without considering the cause upon its merits for the reason that it affirmatively appeared in the bill of exceptions that it did not contain all the evidence.
The final decree recites that the cause was heard upon the pleadings and "stipulation of facts, depositions on file, and oral testimony of witnesses examined in open court, and the entire record at large."
The cause was not heard in compliance with Chapter 119, Public Acts of 1917, Code, section 10564, but was tried irregularly, so that a motion for a new trial was necessary. Fonville v. Gregory, 162 Tenn. 294, 302, 36 S.W.2d 900. But no such motion was made, and such omission was made the predicate of a motion in the Court of Appeals to dismiss the appeal. Without passing upon that motion, the Court of Appeals affirmed the decree of the chancellor for the reason heretofore stated. The Miller Motor Company did not file a petition for writ of certiorari, so that we cannot reverse the decree of the Court of Appeals and dismiss the appeal for failure to enter a motion for a new trial.
In Independent Life Ins. Co. v. Hunter, 166 Tenn. 498, 506, 63 S.W.2d 668, 671, it is said:
"If there is one thing well settled in our practice, it is that no error of the Court of Appeals, either of commission or omission, can be reviewed by this court except upon petition for certiorari. The erroneous pretermission of material questions by that court must be brought up in the same way that the erroneous disposition of such points is brought up to permit a review by this court."
We are further of the opinion that it was unnecessary to incorporate the depositions with their exhibits on file into the bill of exceptions.
Section 8967 of the Code provides as follows:
"In equity causes removed to the supreme or appeals court by writ of error, or appeal in the nature of a writ of error, the depositions and exhibits read on the hearing below shall be a part of the record, and the cause shall be reviewed and examined as if brought up by appeal."
The depositions, having been taken and filed in this equity cause, became a part of the record. The fact that subsequently, by agreement, oral testimony was submitted to the chancellor would not have the effect of eliding the depositions from the record, so as to require their incorporation into a bill of exceptions in order to make such testimony available in the appellate court.
A bill of exceptions was necessary to preserve the oral testimony and exhibits to such testimony as well as to bring up the stipulation of facts. The bill of exceptions does not contain such exhibits and stipulation of facts, and to that extent it is incomplete. Neither have these exhibits been identified by the trial court. We cannot say, therefore, that the Court of Appeals committed error in declining to consider the cause upon its merits; hence the petition for a writ of certiorari is denied.