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SUPREME COURT OF TENNESSEE

Promulgated by the Court September 28, 1912, and Effective January 1, 1913

PREPARATION OF TRANSCRIPTS OF
RECORDS.

objected to, and then only the portion com-
plained of and the action of the court in re-
gard to the same, shall be stated. When
counsel fail to comply with this rule, an ab-
stract of the record will be required to be
made and filed before the hearing of the
case, and such other orders made as may be
necessary to enforce the rule.

1. Abridgment of the Record.-Counsel are required in all cases, when practicable, to abridge the records to be certified on an appeal, or an appeal in the nature of a writ of error to this court, by stipulation, eliminating all pleadings, testimony, orders, and other parts of the record which do not bear upon or affect the rights of the parties and the questions to be here determined.

Counsel for appellant, or plaintiff in error, in the absence of a stipulation as above provided, shall proceed in accordance with the provisions of chapter 35, Acts of 1903, designating in writing the portions of the record desired by him to be included in the transcript. If the counsel for the appellee, or defendant in error, having first had five days' notice in writing of the action of the opposite party given by said party, his counsel or the clerk, shall fail to designate in writing any part of the record, the clerk will copy in the transcript only that part designated by counsel for appellant, or plaintiff in error, which shall constitute the record upon which the case will be tried in this court. No part of the record shall be copied into the transcript not so designated. Costs accruing for failure of counsel to comply with this rule will be adjudged against the party whose counsel is in default. Lieberman v. Bowden, 121 Tenn. 496, 503, 119 S.

The object of this and the foregoing rule is to save costs to litigants and facilitate the investigation of the record by the court; and they will be enforced in all cases, whether they come directly from the trial courts or from the court of civil appeals.

3. Transcripts of the records of trial courts to be used in this court, assignment of errors, briefs, petitions, and all other papers filed or presented to the court, must be typewritten with black ink, in double space, upon law paper, in length fourteen inches, and in width eight and one-half inches, having a blank margin on the left of every page, or they may be printed. Carbon copies shall not be used. They shall be firmly bound, at the top, in volumes approximating 300 pages, and less than that size, numbered consecutively.

4. The transcripts shall contain the process, pleadings, rules, orders, decrees, judgments, and all steps had in the case, proper under these rules to be certified, in the order of sequence as they occurred in the progress of the case. The date of issuance of process and of the filing of the pleadings, the date of the rules made in the clerk's office, and all rules, orders, decrees, judgments appearing on the minutes of the court, the filing of bills of exceptions, and steps of every

W. 64.

Where the importance of the case and the size of the record will justify and permit the expense, counsel are requested to provide five copies of the transcript so that the rec-kind made in the case shall precede the ord may be examined by every member of

same, respectively, in the transcript; and the clerks shall make a minute and perfect index of the contents of the transcript.

the court.

2. Bills of Exceptions.-Counsel in the preparation of bills of exceptions in the trial court, in all cases, shall state the testimony of witnesses examined in narrative form, omitting therefrom all that is immaterial or which is no longer controverted, or does not bear upon any ground assigned in the trial court for a new trial. The questions asked

5. Unless a question on the same has been made and acted on in the trial court, notices to take depositions, captions of depositions, affidavits, reports of receivers, or other matter not affecting the questions in controversy, unless required by order of the court, or directed by counsel in writing, nor any list of witnesses and answers made must not be talesmen from which juries are elected, ungiven unless the effect of the testimony cannot otherwise be made to clearly appear, in less included in a bill of exceptions, nor any which cases it may be done. Proceedings other unnecessary paper shall be inserted in had in the organization and empaneling of the transcript; nor shall any fee be allowed juries, and arguments of counsel, must not to any clerk for such matter. But the date be included unless the same were seasonably | of service of each paper so omitted shall be

given, and also the time and place at which | PETITIONS FOR WRITS OF ERROR AND the deposition was taken, and who of the CERTIORARI AND SUPERSEDEAS. parties were present. No paper will be copied more than one time, but when it appears in the record again, reference will be had to the page on which it has been copied. In copying depositions taken upon interrogatories, the answer shall follow each question in a different paragraph. Reports and accounts shall follow the orders or decrees directing them to be taken, when practicable, and be followed by the proof on which they

are based.

6. All transcripts of records from trial courts, upon appeals, or appeals in the nature of a writ of error, for this court, shall be made and filed with the clerk of this court for the proper division, within forty days after the appeal is perfected, unless that be within forty days of the regular term, and then as soon as possible.

The clerks of said courts shall endorse on all transcripts the names of counsel for plaintiffs and defendants in their courts, and of plaintiffs and defendants in the Supreme Court (if known to them).

7. When a clerk of any court shall fail to make out and file with the clerk of this court a transcript of the record in any cause in which an appeal has been perfected to this court, in the time, manner and form prescribed by the foregoing rules and the law, in the absence of good cause for such failure, or shall make and certify an imperfect transcript, or shall include therein papers not required, or papers prohibited by these rules, his fees for the transcript will be disallowed by the clerk of this court, and his entire costs may be disallowed by order in the cause.

8. After a transcript has been filed it shall not be taken from the courthouse except by counsel engaged in the cause, and not by them without the clerk's permission and a receipt given therefor; and no transcript shall be carried out of the city in which the court is held, except where counsel desire the record in order to prepare briefs required under these rules; in which case they will be allowed to take such records without order, upon giving a receipt therefor to the clerk; provided no record shall be taken out of the city when the court is in session in that division, except upon order of the court. 9. Suggestions of Diminution of Record. The motion shall be reduced to writing, and verified by the signature of counsel, and shall state specifically the portion of the record omitted from the transcript, and that notice of the motion has been given to opposite counsel, and made before the case is called for trial, so that the record may be perfected for the hearing, or the imperfection will be waived. When the motion is allowed an entry on the minutes shall be made to that effect. The court will, however, in its discretion, consider any record supplied after

10. Petitions presented to a judge, or to the court in term time, for writs of error, or writs of error and supersedeas, or writs of certiorari and supersedeas, to review, reverse and supersede judgments and decrees of trial courts, shall state the case briefly, and be accompanied by an assignment of errors, and a brief, as herein required of cases brought to this court by appeal, and a transcript of the record; and if filed for supersedeas, or after one year, also by a copy of notice served on opposite party or counsel, affording him an opportunity to file a reply brief, or such reasons for the failure to do so as the court or judge may deem sufficient to excuse the party from giving notice. Tipton v. Tipton, 118 Tenn. 691, 104 S. W. 237.

PETITIONS FOR CERTIORARI TO RE-
VIEW JUDGMENTS AND DECREES OF

THE COURT OF CIVIL APPEALS.

11. Petitions for certiorari, or certiorari and supersedeas, to remove cases from the Court of Civil Appeals to this court for review of the jugdments and decrees of that court, must be filed with the clerk of this court, for the proper division thereof, within forty-five days from the entry of the final judgment or decree of the Court of Civil Appeals, five days' notice of the filing of the petition being first given to opposite counsel. The reply brief must be filed in fifteen days after the filing of the petition, provided an extension of time may be granted in proper cases, upon application to the court, or a judge thereof.

12. The petition shall state the substance of the case so as to show a prima facie error or errors in the judgment or decree of the Court of Civil Appeals, and how petitioner is prejudiced thereby, and shall be verified by affidavit. Acts of 1907, chapter 82; Mayor and Aldermen of Nashville v. Patton, 125 Tenn. 361, 366, 370, 143 S. W. 1131.

It shall be accompanied by an assignment of errors, predicated upon the judgment or decree of the Court of Civil Appeals, and a brief in support thereof, in the form required by rules 14 and 15 applicable to cases brought directly from trial courts to this court.

An argument in behalf of either party may be filed in the discretion of counsel.

The assignments of error, briefs, and arguments filed in the Court of Civil Appeals cannot be refiled here in compliance with this rule, as the case is brought before this court for error in the action of the Court of Civil Appeals, and not of the trial court.

13. When the reply brief is filed, or the time for filing the same has elapsed, it shall be the duty of the clerk to attach the opinion and the decree of the Court of Civil

same was entered, the petition for certio- | quote the full substance of the evidence adrari, and reply brief, and the argument of counsel, if any filed, to the transcript and promptly present them to the court, if in session for that division, and if not then in session, to a judge of the court, that the petition may be considered and acted upon. Counsel for petitioner must see that the record and petition reach the court, or one of the judges thereof, within ninety days next after the judgment or decree of the Court of Civil Appeals is entered.

mitted or rejected, with citation of record where the evidence and ruling may be found. When the error alleged is upon the charge of the court, the part complained of, whether it be instructions given or instructions refused, shall be set out. When the error is to a ruling upon the report of a master, exception to the report, and the ruling of the court thereon, shall be set out so that it may plainly appear; and if it be a question of fact upon which master and chancellor have concurred or disagreed, it shall be so stated. If the opposite party also complains of the judgment or decree of the lower court, he shall pursue the same course required of the appellant, or plaintiff in error. The pages of the transcript where the matter referred to appears must always be cited.

When a writ of certiorari is granted and the court desires argument, the case will be docketed, counsel notified by the clerk, and if the county from which it was brought has not been reached it will be tried upon the regular calls of the docket, otherwise upon the recall for cases of this character and criminal cases docketed after the meeting of the court for that term.

(4) No assignment of error in any civil or criminal case, tried by chancery, circuit, criminal, or special law courts of this state and brought to this court for review, can be predicated upon any alleged error of the trial court consisting of an omission or affirmative action, in the organization of the court, the grand jury, trial jury, or for any defect in the pleadings, or for any mistake, irregularity or error in the conduct of the case, unless it affirmatively appears in the record that the omission, action, defect, or error was seasonably called to the attention of the trial judge and ruled on adversely to the plaintiff in error, otherwise the same will be treated as having been waived, or cured in the trial court.

ASSIGNMENT OF ERRORS, BRIEF, AND
ARGUMENT.

14. The counsel for appellant, or plaintiff in error, in all civil causes, shall file with the clerk of this court, at least ten days before the call of the county from which the cause comes, an assignment of errors, and brief in support of the same, typewritten or printed, which shall be attached by the clerk to the transcript. If the record be filed within ten days before the call of the docket of the county is begun, then the assignment of errors and brief must be filed as soon as practicable after the filing of the transcript, and before the case is called for trial or hearing.

Assignment of Errors.-The assignment of errors shall contain in the order herein stated:

(1) A statement of the nature and purpose of the case, and the precise points raised by the pleadings, with such reference thereto as may be necessary; the substance of the verdict and judgment thereon, or judgment without verdict, or decree, with reference to pages of transcript whereon each appears.

(2) A statement of the errors of fact or law relied upon to reverse or modify the same, showing specifically wherein the action complained of is erroneous, and how it prejudiced the rights of the appellant, or plaintiff in error, and refer to the pages of the record where the ruling of the court on matters constituting errors of law appears; and in case it is an error of fact, to the pages of the record where the testimony is to be found relied upon to sustain the same.

(3) When the error is in the action of the court upon a preliminary motion, demurrer or plea, the substance of such motion, demurrer or plea shall be stated, and the action of the court thereon, citing the pages of the transcript where same appears. When the error alleged is to the admission or re

(5) Error in the admission or exclusion of testimony, in charging a jury, or refusing further instructions, misconduct of jurors, parties or counsel; or other action occurring or committed on the trial of the case, or other ground upon which a new trial is sought, will not constitute a ground for reversal, and a new trial, unless it affirmatively appear that the same was specifically stated in the motion made for a new trial in the lower court, and decided adversely to the plaintiff in error, but will be treated as waived; nor will any supposed matter in arrest of judgment be considered unless it appears that the same was specifically stated in a motion, seasonably made in the trial court, for that purpose, and held insufficient. This is a court of appeals and errors, and its jurisdiction can only be exercised upon questions and issues tried and adjudged by inferior courts, the burden being upon appellant, or plaintiff in error, to show the adjudication, and the error therein, of which he complains. Railroad Co. v. Johnson, 114 Tenn. 640, 88 S. W. 169; Wood v. Frazier, 86 Tenn. 501, 8 S. W. 148; Jacks v. WilliamsRobinson Lumber Co., 125 Tenn. 123, 140 S. W. 1066; Hobbs v. State, 121 Tenn. 413, 118 S. W. 262, 17 Ann. Cas. 177; Tennessee Central R. R. Co. v. Brown, 125 Tenn. 351, 143 S. W. 1129.

can be based upon any error or errors ap- | script, at least ten days before the case is pearing in the judgment or decree of the inferior court unless it affirmatively appears that the same was prejudicial to the rights of the appellant, or plaintiff in error, and did affect the merits of the judgment or decree of that court. Code, § 4516, Shannon's Ed. § 6351; Wilson v. State, 109 Tenn. 168, 70 S. W. 57; Lowry v. Railroad Co., 117 Tenn. 507, 101 S. W. 1157.

called for trial, a brief stating concisely the errors of fact and law complained of, and upon which a reversal is sought, with references, in the proper connection, to the parts of the record relied upon to support his contention as to the facts, and to the authorities, to sustain questions of law relied on. No formal assignment of errors is required, but rule 14, subsections 1 to 7 inclusive, must be observed in preparing briefs under this rule. A typewritten or printed argument may also be filed, if desired.

When counsel who appeared for defendant. in the trial court do not intend to appear for him in this court, they shall file with the transcript, ten days before the case is reached here, a statement to that effect. In all cases where an appeal is granted and no bill of exceptions is filed, counsel appearing in the trial court must file an explanation of the absence of a bill of exceptions, and show to the satisfaction of the court that the case was not appealed for the purpose of delaying the execution of a valid judgment to which there is no defense.

18. All assignments of error, briefs, arguments, petitions and other papers filed and to be used in this court, must be typewritten, in all respects as transcript are required to be, or printed. When printed they shall be in twelve point type, with double space, on white paper, six and one-half inches wide and ten inches long, with a margin one and one-half inches wide.

(7) No assignment of errors can be based on the facts, in criminal cases, unless the testimony preponderates in favor of the innocence of the plaintiff in error, and against the verdict of guilty found by the jury, nor in civil cases where there is material evidence to support the verdict of the jury; nor in chancery cases, in matters of account, where there is a concurrent finding upon the facts by the master and chancellor and where the chancellor and Court of Civil Appeals have concurred in their finding of fact, such finding will also here be held conclusive, and will not be reviewed.

15. Brief in Support of Assignment of Errors.-The assignment of errors must be accompanied with a brief which shall state concisely and specifically the propositions of law and fact, without argument or elaboration, relied upon by the appellant, or plaintiff in error, to sustain the several errors assigned for reversal of the trial court. There must follow each proposition of law a citation of the authorities relied upon to sustain it, and there shall follow each proposition of fact, citations to the record which are supposed to sustain the contention of the appellant, or plaintiff in error.

It

This brief must be filed in all cases. may be combined with the assignment of errors, or filed in a separate form. An argument will not supply the place of a brief.

When appellants, or plaintiffs in error, fail or refuse to file an assignment of errors and brief, as required by this rule, it will be taken as an abandonment of the appeal or writ of error, and the decree or judgment affirmed. Errors not assigned and supported by brief according to this rule, will be treated as waived, but the court, at its option, may notice an error overlooked by counsel.

16. Reply Brief.-The counsel for a defendant in error, or appellee, shall file with the clerk of the court, at least three days before the calling of the cause (if the record is filed in time), a brief in support and defense of the judgment or decree assailed. This brief shall be of like character with that required of the plaintiff in error, or appellant, except that no specification of error shall be required, and no statement of the case, unless that already filed is controverted. There shall be an answer to each assignment of error of law or fact, with references to the record and authorities.

17. Criminal Cases.-In criminal cases, counsel for the plaintiff in error shall file

Reference to text-books, statutes, and decisions in briefs and arguments, shall be to the side-paging, if any; but if none, then to the top-paging, except in books which treat subjects by sections, and in these to the section. When adjudged cases are cited, the style of the case must be stated. When the Code is cited, the number of the section appearing in the Code proper, published in 1858, and in the latest edition, must both be cited. Tennessee authorities must be cited, in order, before those from other courts.

ORDER OF BUSINESS.

19. The business of each circuit will be taken up and disposed of by counties in the order in which they stand on the docket. The entire business of each county will be. disposed of when such county is called before proceeding to the business of the other counties of the circuit.

20. There will be one call of the docket of each county of every circuit. On that call every case will be tried or continued. The law cases will be first tried; then the equity cases; and thereafter the criminal cases from the county. A second call will be made solely for criminal cases, filed during the term, and cases in which writs of certiorari to the Court of Civil Appeals have been granted and docketed for argument, after the

cases were originally tried; no other cases, in chambers, after notice to opposite counsel, will then be tried.

if practicable.

21. All cases in which one, and not more than two, of the judges are incompetent, will be tried by the other judges, with the consent of the parties; but if a majority of the judges of the court do not agree, and in cases where more than two are incompetent, and when counsel do not consent, the same will be certified to the governor for the appointment of special judges.

22. Revivor.-In the case of death or marriage of any party to a case pending in this court, making a revivor necessary, and no motion being made by the party entitled to revive by motion, as now provided by law, the case may be revived by scire facias, or bill of revivor, as in chancery cases, or by publication, as hereinafter provided.

23. If it shall appear by the return of the sheriff upon the scire facias, or upon the 29. Counsel will be permitted to present subpoena under the bill of revivor, that any their arguments orally or in writing, as they defendant therein is not to be found, or, if it prefer, but one of these modes must be purbe shown by affidavit that any of the causes sued. Typewritten or printed arguments exist which are specified in the first, second, may be filed in all cases, but they will not fourth, and fifth subdivision of section 4852 supersede the necessity of an assignment of (4352) of the Code as grounds for dispensing errors and brief, or a reply brief. The arguwith personal service of process, the court, ment of each side will be confined to one in term time, or clerk in vacation, may hour, and only one counsel will be heard, unmake an order requiring such party to ap-less otherwise ordered by the court, on appear at the time specified, and show cause plication for that purpose made before the why the suit should not be revived against hearing of the case is begun. Other counsel him or her, a copy of which order shall be may file typewritten or printed arguments. published for four consecutive weeks in some newspaper published at the place where the order is made, or in such other paper as the court or clerk may order. 1 Heisk. 786.

30. The reading of authorities relied upon by counsel in support of their contention of the law of the case, will not be allowed, unless suggested by the court. When thus called for, no comments during the reading will be allowed, but such comments, if any, shall precede or follow the reading. Counsel, however, may quote authorities in oral or written arguments.

31. Opinions.-The clerks of this court will promptly record the written opinions delivered by the court, and they shall not suffer them to be taken from their offices until they are recorded. These opinions will not be published unless ordered by the court. The original opinions, ordered to be published, shall be delivered to the attorney general and reporter as soon as enrolled.

24. Writs of scire facias to revive, or against bail in state cases, subpoenas upon bills of revivor, and order of publication, if issued or made in terms, may be returnable as the court may direct; if issued or made in vacation, for the purpose of revivor, such writs or orders of publication may be made returnable to the first day of the next term, or to any specified rule day in vacation; and, in the latter case, after due publication or service of the writ, if no defense is made, or cause shown against the revivor, the clerk may, at any rule day in vacation succeeding such return day, enter an order reviving the cause.

25. Rule Days.-The first Monday of every month shall be a rule day; and the clerk shall keep a rule docket, in which he shall enter all orders made under these rules.

26. Motions. All motions shall be first reduced to writing and filed. All motions and applications to the court for any purpose, including the filing of briefs, after the hearing, must be made in open court, or filed with the clerk to be presented in open court, of which reasonable notice shall be given to opposite counsel. No motion, brief, or petition will be considered not so presented.

When the court is not in session in either Knoxville, Nashville, or Jackson, the applica

27. The clerk shall keep a motion docket, on which shall be entered all motions which are made in court, and not at once disposed of. Mondays and Fridays shall be motion days, and all motions shall be made before beginning the call of the docket on these days. All motions shall be entered on the minutes, and noted on the motion docket, and notice thereof immediately given to opposite counsel. They will be disposed of only on briefs.

HEARING OF CASES.

28. The reading of the transcript will be dispensed with proceeding the arguments of causes, but counsel may refer to and read such parts of the record as may be necessary to illustrate or establish the points made.

32. Rehearing.-Petitions for rehearing, before being presented to the court, will be furnished to the opposite counsel; and after both sides have prepared briefs, the record, together with the petition and briefs, will be presented to the court without argument. If the court determines that the cause shall be reheard, the change of opinion will be announced, or the counsel will be notified, and the point or points on which reargument is desired will be indicated, and the time for reargument designated. But petitions for rehearing must, in all cases, be presented to the court within ten days after the opinion in the case which is sought to be re-examined, except decisions made within the last ten

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