Brownlow's Knoxville Whig, and rebel ventilator. [volume] (Knoxville, Tenn.) 1863-1866, 1866-01-17
JESSE G. FRAZIER, Clerk.
.. u LHLES $50 q "a. !. 80. Is. STE

-. -. LILIES, SEcf2V, 6t a. M error, Is. SIf,-
PHEN NOLEN
This is q matter before a Justice of the Peace,
against the Sheriff of Smith county, for the default
Of his deputy.
On the I'd Of May, 1859, the defendant in error
recovered, before W. B. Whitley Justice of the
Peace for said county, judgment against 81. c.
Betty Tor S2t320 Execution issued thereon, which
came TO the hands of Avin Ward, the Deputy Sher-
if and upon which he collected, and failed TO pay
over about Sl55.
On the Sth of December 1860, Nolen, the plain
tiff in the execution, gave notice to the Sheriff that
on the 18th same month"; he would move, before
the Justice, for judgment against him and his
rites on his official bond the default of his deputy
The notice is full and explicit and its service was
duly acknowledged by the Sheriff on the Goth of
December 1860. On the 9th following, the JUS
tice rendered his judgment against the plaintiff in
error, and Perkins and Walden, his securities for
$l55 06. Execution issued thereon May 9th, 1861,
which was returned in January 1862, Endorsed
held up by order of the plaintiff In February
thereafter an alias execution issued, which was re-
turned, staid by the supersedias in this cause.
Under this state OF facts, the plaintiffs in error
filed their petition on the l4th Of March, 1862, in
the Circuit Court of Smith county for wrs of GER
tiOraTi and supersedias, upon which fiat grant
ed, the same day fled, and the supersedias issued
three days thereafter retUrnable to the November
term, 1861.
The cause remained il til, condition until Nov
term, 1864, when II continued for want of a
competent court; and again at March term, 1865
for the same cause. At the July term following,
motion, the petition for certiorar and supersedas
was dismissed, and judgment rendered against the
petitioners and their security in the prosecution
bond for Sl55O6, with 10 per cent. interest from
the rendition Of the Justices judgment, from which
appeal is prosecuted to this court.
Various questions are presented in argument, and
maintained with much FEASIBILITY. Among which
it is insisted that the Justices papers not filed
until July, 1865, and the cause not therefore
properly in court until that .ime and the motion to
DISMISS being made at the next term after the filing
of the papers, came in time. We cannot assent to
this proposition. The writ Of certiorar in cases
like the present. this court has repeatedly held is
simply substitute for appeal and the granting
of the prayer of the petition for ccriorar ard the
issuance and service Of the writ, efectUally re-
moves the into the Superior Court as if it had
been brought up by appeal. And it is the duty of
the Justice without delay TO return the papers into
court His control over the cause at once ceases,
and he has no power to suspend the action Of the
revising tribunal by retaining the papers in his Of
fee The cause is regularly in court on the execu-
ton and return Of the writ OF certorari and if the
Justice papers, rs II Is insisted in this case,
accessory TO contradict the petition on a motion to
dismiss it the duty Of the defendant in error to
compel their production.
1t is further insisted thai the petition shows no
merits, and that the grounds upon which the certio-
rari was issued wholly insufficient. This is GER
tainlv true. More than fourteen months elapsed
from the rendition of the Judgment by the Justice
before the presentation of the petition for certorar
No sufficient excuse for the delay is shown in the
petition, or reasons given for not appearing within
the time prescribed by law. The CertiOrari and su-
persedias were most manifestly improperly granted
but notwithstanding, this court, in the of Nicks
VS.. johnson, Sueed, 500, has said: 1t Is well
settled IN practice that If the CertOrar has been
improperly obtained, or upon insufficient ground,
the party against whom it Issued must, at the re-
turn term, at least, at the first term after theser
vice OF the supeTsedias, avail himself of the Obec-
ton by rule or motion TO dismiss And his failure
to do so viii preclude him from Directing after
wards, that the cause stated in the petition Is not
sufficient that the case was not regularly removed
into the Superior Court.
This rule Of practice Is founded in sound reason
ing and all attempts at this time TO change it are
but 50 many efforts 10 unsette the established prac-
tice in Tennessee. The Office Of the writ of GER
tiOrari, the court says, IS simply TO remove the
case into the Superior Court for a trial and the
end Of the petition is TO lay sufficient grounds for
the issuance of the writ At the return term, Or at
least, al the first term after service of the superse
dias il Is open TO the other party TO show that the
Ceriorari ought 90 be dismissed If this be not done
the petition and writs Of certiorari viii have served
their purpose and all questions Of the sufciency Of
the stated in the petition and 70 the regu-
lartv of the removal Of the cause, are concluded"
Applying this rule Of practice TO the case before
the court there can be but one result. The motion
to dismiss came too late The fact that the in
teryened and for time closed the courts in Tennes-
see, would, perhaps have furnished a sufficient ex-
for the delay, had they not been reopened long
before the motion to dismiss was entered. The re-
cord shows at least two regular coLVinuances of
this cause after the reopening Of the courts of the
State before the motion 10 dismiss entered. And
the reason assigned in the orders of continuance,
that the court not competent furnishes no
justification for not at least entering the motion to
dismiss. /
The judgment Of the Circuit Court will be re- /
versed, and the cause renlsnded for new trial On
the merit. {
MILLIGAN, Judge !
Attest }. q. FRAZER, Clerk.
OlIT.r CLrrE SyFREuE IHr MD
nv Division cot rur STATE TENNESSEE, At NASHVILLE
l. Jesse G. Frazer, Clerk of said Court, do hereby
certify that the foregoing a true perfect and com
plete copy Of the opinion Of the Court delivered at
its December Term 1865, in the case of B. &. J
UhlCs, Sheriff, ct al in error. Us. Stephen Nolen,
now on file in my Office.
~ In testimony whereof l have hereunto
LIS. set my hand and affixed the seal of said
49, Court, at office in the Capitol at Nashville !
on the Sth Of December, 1850
JESSE G. FRAZER Clerk !