The opinion
On Petition for Rehearing
In this cause, plaintiff in error, Elizabeth Rose Davis Talley, has filed a petition for rehearing. Said petition presents no new matter, not heretofore presented at the hearing of this cause, and same is accordingly denied.
One of the questions emphasized in the petition to rehear, which was presented with equal force and emphasis at the former hearing, was a contention that the cause had been improperly tried in the Circuit Court of Hamilton County before His Honor Judge David Tom Walker.
As was pointed out in our former opinion, filed November 27, 1962, there being no bill of exceptions in the record, we were compelled to conclusively presume in favor of the validity of the lower court’s judgment on this point, as well as with reference to the judgment rendered. We must presume that the Circuit Court of Hamilton County in assigning this cause to Division IV of the Circuit Court of Hamilton County did so pursuant to rules of court adopted under authority of Section 16-514 T.C.A.; but this court cannot judicially know the rules established by the Circuit Courts, and will not notice them until they are proved on the trial below and incorporated into the bill of exceptions. Harris v. Bur *635 ris, 1 Tenn.Cas. 80 ; Brewer v. State, 187 Tenn. 396 , 215 S.W.(2d) 798 ; Shettles v. State, 209 Tenn. 157 , 352 S.W.(2d) 1 . As stated above, and as pointed out in our former opinion, there was no bill of exceptions in this case.
The petition to rehear also complains of the failure of this court to consider affidavits filed in the lower court which, although physically incorporated in the record, were not embodied in a bill of exceptions. The case of Wooldridge v. Robinson was cited in our former opinion as authority for this ruling. The correct citation for this case is 49 Tenn.App. 137 , 352 S.W.(2d) 238, 244 . Unfortunately in our former opinion this case was incorrectly cited as being in 252 S.W.(2d) 238 , which was a typographical error.
If we are wrong, in adhering to our former opinion filed November 27, 1962, the petitioner has an adequate remedy, available in the form of a petition to the Supreme Court for issuance of its writ of certiorari. The petition to rehear is denied.
Avery, (P. J. W. S.), and Carney, J., concur.