*24On Petition to Rehear
A petition to rehear has been filed in behalf of J. M. Woods raising two questions with reference to our opinion in this case filed on March 12, 1959.
The first question relates to the next to the last paragraph of same in which we held that we could not consider the matters assigned'as error in behalf of Woods in the Court of Appeals with reference to the second trial because, as we stated, such questions have not been preserved as required by T.C.A. sec. 27-823.
The brief in support of said petition to rehear has cited and discussed at length a number of cases including and following Railroad v. Scott, 87 Tenn. 494, 11 S.W. 317, in which the practice with regard to wayside bills of exceptions was involved. We do not deem it necessary to discuss those cases because there is not and has not been for many years any doubt about the general procedure, i. e., the appellate court must examine the bill of exceptions relating to the first trial first before proceeding to examine the bill of exceptions relating to any subsequent trial.
The real question is whether or not said Code Section 27-823 applies to the situation existing in this case, as we assumed in our previous opinion that it did.
Counsel for William F. Meacham, in response to this phase of the petition to rehear, have cited Independent Life Ins. Co. v. Hunter, 166 Tenn. 498, 63 S.W.2d 668, and General Outdoor Advertising Co. v. Coley, 23 Tenn. App. 292, 131 S.W.2d 305, 309.
*25In the first of these two cases, no wayside hill of exceptions was involved. In the second case, there was a wayside hill of exceptions hnt as we shall point out in a moment, in that case the action with regard to the hill of exceptions on the first trial was determinative of the entire controversy, hnt the same is not trne in the instant case. The facts in the Coley case, snpra, were as follows: The plaintiff sned Hardy, the owner of the vehicle, obtained a judgment against him and for the purpose of this discussion we may further disregard that fact. At the same time plaintiff sued General Outdoor Adv. Company on the theory of respondeat superior. On the first trial the jury was unable to agree and a mistrial was entered. The Advertising Company filed a motion for a new trial on the ground that the trial judge had refused erroneously to grant a directed verdict as to it at the close of all of the evidence. The motion was overruled and the defendant excepted and filed a wayside bill of exceptions.
On the second trial plaintiff recovered judgment against the Advertising Company which was approved by the trial judge after denying the defendant’s motion for a new trial. On the appeal to the Court of Appeals, the Advertising Company as to the first trial assigned as error the failure of the judge to direct a verdict in its favor as above stated. In the second trial, it had assigned as error other actions of the trial court alleged to he sufficient to reverse the judgment in the second trial.
The Court of Appeals, as is proper, considered the first trial first and reversed the action of the trial judge in refusing to grant the motion for a directed verdict. It then dismissed the case.
*26The Advertising Company then filed a petition in the Court of Appeals requesting it to rule on the assignments of error in the record as to the second trial. In this petition it was stated that there was some doubt about whether it was necessary to petition for a rehearing before proceeding to file a petition for certiorari to the Supreme Court. In response, the Court of Appeals said:
“If we pretermit a question on the theory that it is immaterial in the view we take of the case, then our action in this respect is subject to review by certiorari and it has long been so understood by the profession. The petition for the writ proceeds upon the theory that we erred in concluding that the question was immaterial. In short, on the part of this court, errors of omission as well as errors of commission are reviewable by certiorari. Independent Life Ins. Co. v. Hunter, supra.
“In the situation presented in the instant case, the rule of practice is that the appellate court will, if necessary, hear and consider separately and in order the records of each trial. In passing upon the questions arising upon the first trial all subsequent proceedings are ignored. If a decision of these questions is determinative of the entire controversy it does not become necessary to go further and consider the questions arising upon the second trial. Cf. Railroad v. Scott, 87 Tenn. 494, 11 S.W. 317. And see numerous cases cited by Judge Williams in his notes to Williams Tenn. Code Annotated, section 8986.”
It will be seen, therefore, that the action of the Court of Appeals on the first trial was determinative of the whole controversy, because that Court held that the *27trial judge should have directed a verdict in favor of the defendant. Whereas, in the instant case, on the motion for a new trial in behalf of plaintiff, the trial judge set aside the verdict of the jury, because of the situation heretofore related in the original opinion with reference to a particular juror, and granted a new trial to the plaintiff in which there was a judgment against the defendant. Therefore, since we have reversed the action of the Court of Appeals which had reversed the action of the trial judge, we have necessarily left the case in the plight that the defendant was entitled to have his assignments of error as to the second trial reviewed by the Court of Appeals. It then appears to us that we are confronted with a situation which is not embraced within the rules reflected by T.C.A. sec. 27-823. It is neither our duty nor our function to review the assignments relating to the second trial. That is a matter for the Court of Appeals. Hence, after a full consideration by the Court, we have concluded that the proper disposition to be made is to remand the case of the Court of Appeals for that purpose, even though the defendant did not file a petition for certiorari to the failure of the Court of Appeals to consider the second trial. We think that the statute did not intend that the same should be necessary in this sort of situation.
See Denny v. Webb, 199 Tenn. 39, 281 S.W.2d 698, in which the situation was somewhat like the present one and where the matter was remanded to the Court of Appeals. In that case, at the conclusion of the plaintiff’s proof, the defendant moved for a directed verdict in his favor on several counts, among which was a plea of one-year statute of limitations. This motion was overruled by the trial judge, the case went to the jury but the jury *28could not agree and a mistrial was entered. The defendant saved a wayside bill of exceptions in order to preserve the question of the failure of the Court to direct a verdict. At a subsequent trial there was a verdict ag’ainst the defendant. The Court of Appeals held that the trial court should have directed a verdict. This Court reversed the Court of Appeals and sustained the trial judge in refusing to grant a directed verdict. So far as the opinion shows there was no petition for certiorari filed by the defendant to this Court with reference to the second trial; Under these circumstances, the cause was remanded to the Court of Appeals for further proceedings under the appeal originally to that Court.
This same question arose in Coleman H. Dykes v. Meighan Construction Co., petitioner, and was disposed of in the same manner as we think is proper in this case which is to remand the case to the Court of Appeals for consideration of the assignments of error with regard to the second trial.
The petition to rehear with regard to the second question, i. e., the action of the trial judge in granting a new trial as to the first trial, is overruled for reasons heretofore stated.