Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1866-12-28

John Anderson.
This is an action Of trespass on the case
brought By summons and ancellary attach
ment, in the Circuit Court Of Hamilton
county, by John Anderson against jane
w. Gillespie, w. III. Tibbs and tWenty-on,
others. The trespass complained Of in The
declaration, is, the unlawful arrest and i'm.
pTisonment of the defendent in error
During the progress of the cause in the
court below, a Rolle prOseqai was entered as
10 several Of the defendants, and various
other intermediate step, taken which we
do not deem necessary to notice.
At the June term Of said court, 1866. a
judgment was rendered against the plain
tifs in error, for 5000, and an execu-
ton awarded with orders Of sale, directing
the sheriff 10 subject the lands Of the
parties attached 10 the satisfaction Of the
judgment At the October term following,
the plaintiffs in error exhibit their joint
petition 10 the presiding Judge, and for
the reasons therein contained, prayed that
the orders Of sale and execution Of the
judgment be superseded and that a writ Of
error, c0ralR NODES be granted 10 revoke and
annul the judgment
The petition is regularly sworn 10, and
the character O! the petitioners sustained
by comperagators. The application was
heard m open court, and after full argu-
mont the petition was disallowed, and the
writ refused, from which an appeal in error
is prosecuted 70 this court.
Various errors IN fact, arc set forth in the
petition, many Of which do not tend 10
render the judgment erroneous, much less
20 preclude its rendition, if such facts had
Judlcially appeared on the former trial.
We deem II therefore necessary 10 notice
only suci facts as are assigned as error,
which II is insisted are reached BY the writ
prayed for.
BY the Code, section BIG, il il declared
The relief embraced in this article IS con-
fined 10 errors Of fact, Rccruing in proceed
ings Of which the person seeking relief had
no notice, or which he was prevented by
disability from showing or correcting, or in
which he was prevented from making de-
Tense by surprise, accident, mistake or fraud
without fault on his part"
The grounds Of error, in fact, assigned in
the petition are in substance, as follows:
/. That the petitioners were surprised by
the plaintiff enteringa Olleproseguias to las.
W. Gillespie, one Of the defendants, after the
cause was called and the jury was selected,
from whom he had received, az petition
ers are informed and believes, compensa-
ton in lieu Of his damages when it was too
late TO plead accord and satisfaction,
which they are advised would have been
proper.
2. That they have learned previous TO
the trial, that the plaintiff received in lieu
and in satisfaction Of said damages, $50
from LeOnidas Hutchinson, one Of the
defendants, which was not known TO petit
tioners before the trial, and hence not
pl AIDED.
3. Since the trial of the cause the ueti-
tioners are informed and believe that the
plaintiff, John Anderson. was at the time
Of his arrest regularly enrolled and mus.
tered into the service Of the United States
and that he was captured by the said VIM.
l.. Brown, Captain in the service Of the
so-called Confederate States, at open war
with the United States, and hence said cap
ture was purely an act Of war, with which
petitioners and citizens had nothing 10 do.
Petitioners are informed that on the trial
Of this cause, two other causes, viz: The
case Of A. J. Anderson against petitioners,
and John Anderson, administrator Of james
Anderson, deceased, against the same par
ties, were consolidated and tried at the
same time before the same Jury, and the
same testimony applied to all threa of the
causes
Under this state of facts, as presented in
the petition taking them as true, we are
called upon 10 determine whether they are
sufficient 10 justify the issuance Of the writ
prayed for or not. The rule.in such cases,
as laid down in Crawford va Williams, lst
Swan, 34l, appears to lie, that an error in
fact, which will render a judgment errone-
Gus, must be such as would have precluded
the rendition Of such Judgment if the fact
had judicially appeared at the former
trial.
This rule although established before
the Code, is not restricted BY it, On the
contrary, il is rather enlarged, and made
10 embrace cases of surprise, accident, mis-
take or fraud, without fault on the part Of
the applicant for the writ
In this case, the plaintiff in error plead
10 the action, and by themselves or attor-
neys, were present at the trial, contesting
the right Of the defendant in error to a re-
covery. The fact that n n0Le grosegla was
entered as to Gillespie, one Of the defend
ants below, after the cause was called and
the jury selected, could not operate as such
a surprise as is contemplated by the act Of
assembly, or justify the issuance ofthe writ
Of error, oOrdm n0bis
So, also, the discovery Of the fact that
the defendant had, previous to the trial re-
ceived $3.50, in satisfaction of his damages
from one Of the defendants which was not
known, as stated, in time 20 plead il. does
not bring this case within the principles
governing applications Of this sort. This
allegation is newly discovered matter, and
however svailing il might have been, if
properly pleaded in time, or etlectual on a
motion for new trial, ifmade NJ the prop
er time, il lie impossible for us TO say that
il would have decided the plaintiffs right
Of action,
Il may II properly pleaded, or il may not
have done so, is not therefore such fact as
falls within the principles Of law govern
ing this writ
The same reason applies with equal force
70 the discovery Of the fact, that the plain
tiff below, John Anderson, was a soldier.
regularly mustered into the service Of the
United States, and as such, he was captured
in the course Of regular warfare These are
sll the facts in the nature Of newly discov-
cred testimony which haye come 70 the
knowledge OF the plaintiffs in error, since
or at the trial, but it does moi appear wheth-
e. they were ascertained pending the trial.
or after its termination and during the
term, or after the term closed. IL before
the close Of the term they might have been
svailing on a motion for a new triSl, but
no motion was entered, and il after the
term, there should have been some reason
assigned that would enable the court 10 see
that there was no want Of diligence on the |
part Of the plaintiffs in error in discovering !
the facts, they now insist on rs rendering !
the judgment erroneous.
Ii is, therefore, now too late by this rem |
edy, for the plaintiffs in error. 10 avail /
themselves OF these facts. In the case OF |
Brigham vs.. Brewer, 9TH Sneed, 4S8, the /
court say; "lf such practice we're toll |
Grated It would lead to almost intermina- |
bic litigation"
Afler a judgment had been regularly
rendered and paid of, a. in this case. the
defendant might discover or fabricate evil
ience that would have been material on
The trial, ana he would only have to obtain
his writ Of error, oorGm Robts. assign errors
in fact, and proceed TO try the whole mat
ter over again. Such practice would rem
der the validity of the judgments of the
court too uncertain 10 comport With aound /
policy, safety or public confidence. and /
cannot be sustained upon authority.
The fact that the other cases were con
solidated and heard at the same time with
the one under consideration, is certainly
very loose, irregular and dangerous prac. |
tice, and well calculated 70 DESTROY the
unity as well as the purity Of the right Of
trial by jury, and by no means 10 he
encouraged. But the record before as.
which is exhibited with the petition. dis
closes no order Of the court consolidation