Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1866-12-18
VOL. XXXIII.

ception from time to time that might be
presented II the trial Of the cause, and to
which the suitors by law were rightfully
entitled TO have made part Of the record.
AZ much as we are disposed not TO exer-
else Jurisdiction where doubt exists, but
whore the rights or liberty Of the citizen
would be placed in jeopardy, we think it
our duty TO take jurisdiction.
In case that came before the Supreme
Court IN 1916, Of which there is but a
short note, on petition for mandamus
10 compel the Circnit Judge to proceed to
the trial Of a cause, court held, they had
no original jurisdiction, and they would
not take cognizance Of any matter unless it
relates 10 an appeal ulich II pruyed and a.
tempted 10 Be defeated IN anu indy, this court
U0llld aid bg uny right uhscA loolad overcome
and repecye the injury" 5th Haywood, 50.
In the case Of Miller VS.. R0gres, 9th Hump.
236, Turley, Judge, in commenting upon
the facts, where it was urged the Judge
had refused 10 incorporate into bill Of ex-
ceptions parts Of the evidence, said We
must examine the facts here as contained
in the bill Of exceptions and not upon a
supposititiousc conception ofWhat they might
have been il the bill of exceptions had
been drawn up as they should have been.
IL judge refused 70 sign BIZ of erceptiORs
Il is no cause Of error, the Ouly redress is By
nlandanus. T" In a case properly made out
forliOri, IS this so when he will sign an
imperfect bill Of exceptions and none
other"
Judge Caruthers in his history Of law
suit, 259, in commenting on this principle,
says: "If the judge refuses to sign il, the
remedy Of the party is to apply to the Su-
preme Court for a mandamus So If he re-
fuses to insert in it what the party contends
was really the fact, his only remedy is a
mandamus TO compel him" Though this
has not the force Of judicial decision, yet
she large experience OF the author with the
Jurisprudence Of the State and his high
character as a jurist gives weight to his
opinion upon this question.
The right has been frequently exercised
by The Supreme Courts of other States.
In New York the question was fully ar-l
gued before the Supreme Court Of that State,
and the writ awarded. 9th Johnson's re-
port, 219. In ID ScammaEs, III. report,
lS9, q case came before that court. The
question was well considered, the aulhori-
ties were reviewed, and upon mature deli
beraion, as appears from the great number
Of authorities cited, the writ was awarded
but not having the constitution of those
States before US We cannot say whether
these courts had only appellate jurisdiction.
We are Of opinion under the appellate
powers of this court, Il hls the right TO
award the writ of manaa MUS. ll
Second. Having the jurisdiction, has
the petitioner presented such state Of facts
as will authorize the court 10 award the
writs and did the Circuit Judge err in
refusing 10 sign the bill Of exceptions, and
TO determine this question we must look to
the petition and the facts embraced therein.
He AYERS, on the 18th Of February, 1866,
he entered his motion TO set aside the judg-
ment Of Brownlow against him and vacate
the proceedings. At a subsequent day Of
the term he entered similar motion, and
through press Of business of the court
the motions were continued until the June
term, 1866. During the session, the first
motion to set aside the judgement was ar
| gued by the counsel, and overruled by the
court.
The petition was not filed upon the hear
| ing of this motion, nor affiidavits read or
presented to the court. At a subsequent
day Of the term the second motion, similar
in character 10 the first was called up. The
petition was not filed he says in his afiida-
Wit. We had the petitions and affidavits
in support of the motion and offered to
read them 10 the court, but the court refused
to hear them, and said he would sign no
bill of exeeptiCas in the case, though the
court had overruled the first motion made
to vaeate and set aside the judgement. He
| presented the second morton to be entered
Of record at the February term, 1865, and
continued IL 70 the June term, 1866 and
entertained il and acted upon It. Though
this was irregular, the petitioner had the
| right in support Of il 10 present his petit
tion and afidavits, and if the court refused
to hear them, he had right to have them
! incorporated in the bill of exceptions.
/ Though the first motion was overruled, it
was just preceding the second motion and
at the same term. ..r.-F. II
The court entertained the motion and
acted upon il, and it was his duty 10 have
| heard such petition and affidavit as were
| offered by counsel in support Of it. The
declaration Of the Judge, as stated in
/ the petition, that he would sign no bill of
exceptions in the cause wasconclusive upon
/ the petition, and his only remedy Is bv
mandamus TO compel him. The law pro-
vides, in judgments by attachment against
nonresident debtors, or where the party
has merely removed himself or property
from the State, the judgment may be set
aside within twelve months upon good
cause shown" The petitioner states he
was a nonresident. We can only look 10
the petition for the facts in this motion.
Being a nonresident he had the rightwith-
in twelve months from the rendition of the
judgment to make bis application to set it
aside, and in support Of that motion to file
his petition and afidaYits, that the court
might Judge Of the sufheieney Of the cause
shown, and If the court should be of opin-
ion they were not sufficient, he had the
right 10 have them incorporated in his bill
Of exceptions and made part Of the re-
cord.
In determining this we can only look to
the facts stated in the petition and the afi-
! dayits supporting it. The law required
the Judge to sign the bin Of exceptions if
the facts are correctly set out.
The declaration Of ihe Judge, he would
not sign any bill Of exceptions" IA appears
from the statement Of the petition, were not
warranted by law
! 1t is our duty as a revising court, hay-
ingjurisdiction Of the case, to see hat every
suitor in this court, has extended TO him
the rights aud privileges to which he is
entitled BY the laws of the land
The case having been brought to this
court by appeal, and it appearing from the
petition supported By afidavits that the
Hon. F.. r Hall refused to sign the bill of
exceptions made and presented on the
trial Of the cause, that the matters and
| facts therein stated might be made part
Of the record Of said cause, and the plain
| uh ayerring in his petition that they are
material 10 his rights in this court, and we
are therefore Of opinion that an alternative
mandamus should issue to the Hon. f. T.
Hall, Judge, etc, 10 appear before this
court al its next regular term and show
cause why he should not sign the bill of
| exceptions rendered in this case.
SHACKELFORD, Judge.
A true copy Test NJ. L. PATTERSON,
Clerk"
|
NAPoLEoN's RETREATS. - The Unitl
i Cdfolic1. of Rome. of Nov. 2Tth contains