Railroad v. Johnson. Frazier, 86 Tenn., 500, 8 S. W., 148; Riggs v. White, 51 Tenn., 504; Foster v. Burem, 48 Tenn., 784. Rules similar to that under consideration requiring all grounds for new trials, whether of law or fact, to be stated separately in writing, and entered upon the minutes of the court, and providing that all errors not so set out shall be considered as waived, are now in force in a majority of the circuits of this State, and are not only reasonable and valid, but the experience of these courts, and of this in the cases coming from them, has demonstrated that they contribute greatly to the speedy, final, and correct disposition of litigation; and it would be better, for these reasons, and to prevent mistakes resulting from the existence of different rules of practice in the courts of the State, that they be adopted in all of them. This court has repeatedly held, in cases brought to it from circuits having this rule, that all errors of the trial court not assigned as grounds for new trial in the motion made for that purpose are thereby waived, and that assignments of error upon the refusal of the trial judge to grant new trials cannot be predicated upon grounds not so assigned in the lower court. Railroad v. Blair, 104 Tenn., 212, 55 S. W., 154; Wise & Co v. Morgan, 101 Tenn., 273, 48 S. W., 971, 44 L. R. A., 548. We are now to determine whether or not the grounds upon which these assignments of error are predicated are sufficiently set out in the motion for a new trial. It 114 Tenn-41 Railroad v. Johnson. seems to be well settled that the statement of the grounds in the motion must be sufficient to direct the attention of the court and opposing counsel to the error or irregularity relied upon to vitiate the verdict. In the work on Pleading & Practice last quoted from, it is further said: "The general rule is that the grounds [for a new trial] must be stated so specifically as to direct the attention of the court and opposing counsel to the precise error complained of. A mere statement of the grounds, without further specifications, will therefore be insufficient. The purpose of the rule is to direct the attention of the trial judge to the alleged erroneous rulings, and present to the appellate court the precise question involved. The safest course is to assign each error with the same particularity of an assignment of error in appeal. But this is not the practice in most of the States; the courts holding that it is sufficient merely to assign error in the ruling complained of, as that the court erred in giving a certain construction or admitting certain evidence, without stating why such ruling was erroneous. If the grounds for a new trial are not stated in the motion, it may be overruled by the court, and disregarded on appeal. All errors known at the time of filing the motion must be included therein, or the errors omitted will be deemed to have been waived." Ency. of Plead. & Prac., vol. 14, pp. 882, 883. Mr. Elliott, in his work above cited (volume 2, section 991), says: "The law presumes the verdict to be correct. Hence on a motion for a new trial the party must set Railroad v. Johnson. forth the grounds upon which he intends to rely, or the objections will be considered as waived. The motion should be in writing, and should specify with reasonable certainty all the rulings deemed to be erroneous. It is to be kept in mind that it is the objections specified in a motion, and those only, that are brought up for review, for all others properly arising on a motion for a new trial are deemed to be waived. It is on a motionas it is written-that the appellate court acts, for, as to objections not properly presented, the presumption is in favor of the regularity and legality of the rulings of the trial court. It is the business of the party who takes exceptions to show that the decision is wrong. It is not sufficient that he succeeds in mystifying it by adopting language which subjects the judge to the suspicion that he did not understand the safest ground on which to place it. In order to show that rulings are wrong it must appear that they were probably injurious to the party who makes complaint, since a mere harmless error will not warrant a reversal." The text in both of these works, which are of the highest authority, is supported by numerous decisions of other States, many of which are predicated upon the general rules of practice of courts of law. We are of the opinion that the grounds set out in the motion should be as specific and certain as the nature of the error complained of will permit. Thus, if the error consists in the admission or rejection of evidence, the evidence admitted or rejected should be stated. If it be Railroad v. Johnson. for affirmative error in the charge, or for failure to give an instruction properly and reasonably presented, it should set out the portion of the charge complained of, or the instruction refused, or otherwise definitely identify the instruction. If it be for misconduct of the opposite party or that of the jury, the facts constituting it should be stated. This was not done in this case. The testimony admitted and that excluded is not statednot even the name of the witness given-and the instructions requested are not set out or sufficiently identified. We do not think that it is necessary to state why the ruling complained of is erroneous as fully and with all the strictness required in assignments of error in this court, but a fair statement of the error complained of, sufficient to direct the attention of the court and the prevailing party to it, is all that is required. Nor was it necessary for the successful party in the court below to there object to the form of the motion, because rules of this character are made in the interest of the public, and for the purpose of enabling the courts to speedily and correctly dispose of the cases pending in them, and they cannot be waived by litigants. We are of the opinion that no sufficient grounds for a new trial because of the admission of incompetent or rejection of competent testimony, or a failure to give in charge to the jury instructions submitted by the defendant, were stated in the motion made by it in the circuit court, and that there is therefore nothing upon which these assignments of error on the action of the trial Railroad v. Johnson. judge in refusing to set aside the verdict and grant a new trial can be predicated; and, under the practice of this court, in cases coming from those courts having rules like that in this record, not to consider the assignments of error upon any ground not appearing in the motion for a new trial, these assignments of error are insufficient, and must be overruled. The other assignments of error filed by the plaintiff in error were disposed of in an oral opinion. |