The opinion
ON PETITION FOR REHEARING.
On a former day of the present term the judgment of the circuit court in favor of Nannie Woodward and against the Cosmopolitan Life Insurance Company, for $320, with interest, was affirmed.
In our former opinion (filed January 28, 1928), Aye held that, on the record before us, defendant is not in a position to rely upon any of its assignments of error, for the reason that the written instruments and documents upon Avhich its defenses were based in the trial court were not filed in the trial court and have not been made a part of the record on appeal, and for the further reason that the charge of the court to the jury (to which four of the assignments of error are directed) was not preserved as a part of the record.
The defendant has filed a petition for a rehearing in which it is respectfully but earnestly insisted that this court erred in excluding from its consideration the aforementioned Avritten instruments and documents and the charge of the trial court to the jury.
Petitioner also calls attention to the fact that our former opinion contains recitals as follows: ‘ ‘ The bill of exceptions was signed by the judge and filed by the clerk on April 28, 1927. The time for filing the bill of exceptions expired on April 7, 1927. ’ ’
The last-mentioned date in the above quotation (April 7, 1927) is a clerical or typographical error. The motion for a new trial was overruled and the appeal in error was granted on April ,16, 1927. At that time the defendant was allowed fourteen days from that date in which to prepare and file its bill of exceptions; so that, the time for filing the bill of exceptions expired on April 30, 1927, and we intended to so state in the Avritten opinion. However, it is apparent from a reading of the opinion that the aforesaid date of “April 7, 1927” is a clerical error, for the reason that we treated the bill of exceptions as filed in time, which would not have been true if the time for filing it had expired o'n April 7, 1927. This error, therefore, did not affect the result.
With reference to the charge of the trial court to the jury: Petitioner calls attention to a consent' order entered July 28, 1927 (erroneously stated in the petition as June 28, 1927), on the minutes of this court in this case, headed “suggestion of diminution,” as follows:
*406 “In this cause, it appears from an inspection of the transcript, that the charge of the court was inadvertently omitted in copying and sending up the transcript; and the charge in its proper form, having been submitted to the trial judge, and the same 0 Ned, by him as the proper charge given to the jury upon the trial of this cause:
“It is agreed by counsel for plaintiff and defendant, that the charge of the court, as O Ked, and certified to by Honorable W. C. Cherry, the trial judge, on July 26, 1927, may be filed in this case as part of the transcript and treated for all purposes as the same had been copied in the transcript and sent up and filed in this cause without the suggestion of the diminution of the record: And it is so ordered by the court that such charge be filed by the clerk in this cause.”
The foregoing consent1 order could not operate to make the charge of the court a part of the record to which this court can look, unless the charge had been made a part of the bill of exceptions by seasonable action of the trial judge in the manner prescribed by law. When the suggestion of a diminution of the record is made, in advance of the hearing, by counsel at the bar, with the statement that a part of the record has been “inadvertently omitted” from the transcript, and counsel for both parties agree that a transcript of such omitted parts may be filed and treated as if on suggestion of diminution of the record, it is the usual practice of the court to permit an order to be entered accordingly, upon the statements of counsel; but if, on the hearing, or the subsequent examination of the record by the court before final disposition of the cause, it appears that the matters thus filed were not in fact preserved as a part of the record in any lawful manner, such order is, and must be, treated as entered by inadvertence and disregarded. As held in cases cited in our former opinion, merely filing a charge in the appellate court, even though it be copied into the transcript, does not make it a part of the record to which the appellate court can look, unless it is seasonably authenticated as a part of the bill of exceptions.
With reference to the “written instruments and documents” before mentioned: We said (among other things) in our former opinion, that “a detached envelope accompanies the transcript, in which envelope we find a number of documents” etc.; and again we said that “certain unattached documents, not marked filed, and bearing the same indefinite and undated identification as those heretofore. described, are among the papers found in the aforementioned envelope. (The connection in which these statements are made may be seen from our former opinion on file in the cause).
ft is said in the petition (referring to our former opinion) that “the court says that the envelope in which the exhibits were con *407 tained, Avas detached from the transcript,” and that “Avhen the transcript left the possession of counsel for defendant in this court, said envelope, Avith the exhibits contained therein, Avas attached inside of the back of said transcript by paper brads.”
Counsel seemingly misunderstood the meaning- which the court intended to convey by referring to the envelope and the “exhibits” as “detached” and “unattached.” When the transcript reached the hands of the members of the court, after the hearing- at the bar, the envelope containing the documents mentioned was fastened to the inside of the back of the transcript in the manner described in the petition. We referred to the envelope as “detached” and to the documents as “unattached” merely as descriptive of the fact that they were not included in that part of the bound transcript to which the usual certificate of the clerk Avas appended, and we did not mean to say (and did not hold) that, for that reason, they did not constitute a part of the record here.
If it affirmatively appears that documents which accompany the transcript were filed in the court below and were properly and seasonably authenticated by the trial judge as a part of the bill of exceptions, they will be treated as a part of the record on appeal, whether physically attached to the transcript or not.
In support of its petition for a rehearing, petitioner presents an affidavit of Judge Cherry, AAffio presided at the trial in the circuit court, and an affidavit of W. H. Lingner, clerk.
The affidavit of Judge Cherry is as follows:
“I, W. C. Cherry, make oath as follows:
“That I acted as Special Judge in the place of Hon. E. F. Langford, in the Third Circuit Court, in April, 1927, and as Special Judge of that court I tried the case of Nannie Woodward v. Cosmopolitan Life Insurance Company now on appeal in the Court of Civil Appeals.
“The charge attached to the bill of exceptions in the case AAras true and correct charge given by me to the jury in that case. Said charge was submitted to me on or before April 28, 1927, and after making certain corrections in ink shown in the face of the charge, was approved by me at.that time.
“The fourteen exhibits attached to the bill of exceptions and marked ‘identified, W. C. Cherry, Judge,’ Avere in fact presented to me on or before April 28, 1927, and Avere at that time so marked and signed by me.
“The said charge and exhibits were presented to me for my approval, identification and signature at the same time the other parts of the bill of exceptions were presented to me, and same were approved by me at that time.”
The affidavit of Mr. Lingner, the clerk, is as ío11oaa7s :
*408 “I, W. IT. Lingner, make oatb as follows:
“That I am now and was clerk of the Third Circuit Court of Davidson county, Tennessee, all during April, 1927.
“That on April 28, 1927, the bill of exceptions in the case of Nannie Woodward v. Cosmopolitan Life Insurance Company now on appeal in the Court of Civil Appeals, were delivered to me for the purpose of filing same, and the same was marked filed by me on said date. With the bill of exceptions there was also delivered to me for the purpose of filing fourteen exhibits, thirteen of which had previously been ‘identified, W. C. Cherry, Judge,’ and one had been so identified. Said exhibits as stated were delivered to me for the purpose of filing at the time the bill of exceptions was delivered. By oversight or inadvertence, the exhibits were not marked filed by me at the time. However, said exhibits were delivered to me at said time and remained in my possession from that time until same were filed in the Court of Appeals, with the transcript of said case.
“Said exhibits were inclosed in an envelope at the time they were delivered to me and at that time I marked on said envelope the following:
“ ‘The within exhibits are in the case of Nannie Woodard v. Cosmopolitan Life Insurance Co. ordered sent up in their original form.
“ ‘W. IT. Lingner.’
“The said exhibits remained in said envelope (while the transcript was being prepared, and as stated the exhibits were ordered in the bill of exceptions to be sent up in their original form. I attached said envelope containing said exhibits to the inside of the front' of the transcript in this case with rubber bands, and delivered them to the clerk of the Court of Appeals attached in that manner.
“As a fact said exhibits were filed with me on April 28, 1927, which was before the1 expiration of the time within which they should have been filed under the orders of the court.”
If these affidavits are permitted to serve the purpose sought by petitioner, it is obvious that the effect will be to amend the bill of exceptions, and supply an omission in the authentication and certification thereof, by means of statements of the judge and clerk of the trial court after the adjournment of the trial term and after the time allowed for preparing and filing the bill of exceptions had expired. A bill of exceptions cannot be amended in this manner. Steele v. Davis, 5 Heisk., 75 ; Kennedy v. Kennedy, 16 Lea, 736 , 737; Jones v. Burch, 3 Head, 602 , 605.
In Steele v. Davis, supra, the Supreme Court said:
*409 “It lias been repeatedly bold by this court, ‘A bill of exceptions to become a part of the record must be made up and signed by the judge at the term in which the trial is had. ’
“This means that, if the bill of exceptions is incomplete in any particular, it is not in the power of the court to change it —that as it is signed by the court, so it must remain and continue, unless corrected or changed during the term at which the trial was had.
“The object of the rule is to avoid the evil consequences of mistakes, or forgetfulness of testimony, that would necessarily come about in the time intervening between term and term.
“The term ‘bill of exceptions,’ as used in the reports, means an entire thing, a record of the evidence and ruling of the court' in the cause, and it is as such that it must be made up and signed at the term of trial.
“To have the rule to mean less or more is to make it mean nothing. If it can be added to for one purpose, it can be for all purposes. If it (the bill of exceptions) may be amended in one particular, it may be in every. And so the entire bill of exceptions could be, and often would be, changed throughout'.
“To add to or take from it, after it is signed, and after the adjournment of the court, is in violation of the rule. Such additions or diminution cannot be regarded as part of the bill of exceptions. ’ ’
Recitals made by clerks in transcripts, outside of the certificates they are required by law to make, will be disregarded. Bass v. State, 6 Baxt., 579 , 583; Hardwick v. State, 6 Lea, 229 , 230; Bundren v. State, 109 Tenn., 225 , 70 S. W., 368 .
In the case of Shelby County v. Bickford, 102 Tenn., 395, 406 ( 52 S. W., 772 ), the court said:
“After the appeal was effected in this cause and transcript filed here, diminution of record was suggested here, and several affidavits filed seeking to show that the deed referred to and the record in the cause of Anderson v. Partee were both, read on hearing below, and the deed was thereupon sent up and filed with the balance of the record. This, however, does not make these papers a part of the record. Even the trial judge cannot, after appeal, amend and insert in the bill of exceptions omitted recitals, though parties agree to its being done. Kinnedy v. Kinnedy, 16 Lea, 736 . The effort here is, by affidavits filed in this court, to supply the bill of exceptions and incorporate into the record here evidence which was never made a part of the record in the court below. This practice is vicious in itself, contrary to established rules, and would lead to harmful results in the future.”
*410 In addition to the cases cited in our former opinion and those heretofore cited in this opinion, other cases applying the .rules stated in the above quoted excerpts from Steele v. Davis, and Shelby County v. Bickford, may be cited, as follows: Heald v. Wallace, 109 Tenn., 346, 256 , 71 S. W., 80 ; State v. Hawkins, 91 Tenn., 140, 146 , 18 S. W., 114 ; Ballard v. Railroad, 94 Tenn., 205, 208 , 28 S. W., 1088 ; Dunn v. State, 127 Tenn., 267, 274 , 154 S. W., 969 ; Rhinehart v. State, 122 Tenn., 698 , 127 S. W., 445 ; Wynne v. Edwards, 7 Humph., 418 ; Hill v. Bowers, 4 Heisk., 272 ; Owens v. State, 16 Lea, 1 , 3; Huddleston v. State, 7 Baxt., 55 ; Staggs v. State, 3 Humph., 372 , 375.
After a re-examination of the authorities, we are satisfied that the conclusion stated in our former opinion is in accord with the rules announced and applied by our Supreme Court1 in the numerous cases we have cited in this and our1 former opinion; and it is our duty to follow the law as declared by the court of last resort. An order will accordingly be entered denying and dismissing the petition for a rehearing, at the cost of the petitioner Cosmopolitan Life Insurance Company.
Crownover and DeWitt, JJ., concur.