Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1866-12-18
TUsEDAY. DEcEMaER IS. Isoe.
OPINION on sUPREME COURT.
AZ Knoxville, September Term. 1866.
Tur ST IN ~, fb, Relation a Vs. n C.-rr, ,-,


from the Circuit Court Of Knox. the relator
upon petition sworn to and supported BY
the affidavit Of his counsel, raOved for a
mandamus against the Hon. Elijah I.
Hall, Judge, holding the Circuit Court for
The county Of Knox, to command him 10
sign seal and make part Of the record the
Bill % Exceptions presented 10 him in the
iTlal OF sad oause as set forth in the petit
ton.
The facts necessary 10 bestated, as appears
m the petition at the February term, 1865,
OF the Circuit Of Knox county, Judgment
was rendered against the relator ior tWenty-
i've thousand dollars in favor Of w. G..
Brownlow, in which ~1it he was attached
by his property 10 answer. The suit was
for wrongs and injustice inflicted by the re-
lator on W. g. Brownlow, the defendant
He avOws that he had no notice Of the
pendency Of the suit that he was not legal
ly liable that he had nevered injured or
harmed Brownlow, and was not guilty Of
any tTespasses against him, that il he had
notice he could have interposed complete
defence ofthe action.
On the 18th Of February, 1865, during
the session Of the court, through his conn
rl he caused to be entered motion TO
set aside the judgment and plead 10 the
declaration. At a subsequent day Of the
same term on the 18th Of February, an
other motion was made in said cause SINH
lar in purpOri, TO set aside the Judgment
rendered against him These motions
were continued from the press Of business
ia the court, until the June term, / 8GG. and
after argument of the counsel il was over
ruled at a subsequent day Of term; his coun-
sel proposed 10 take up the second motion,
and asked 10 be heard, and offered 10 the
court the petition signed by the testator
and afhdayits Of different parties he had
present, and which he offered to read 10 the
court, showing good cause fer setting aside
the verdict and Judgment, and presented
his pleas. cd
The Hon. +. T. Hall declined TO hear
the petition and affidavit read or argument,
and oyerru'ed the motion, 10 which action
OF the cOurt exceptions were taken.
On the 18th Of June, 1866, during term,
Judge Hall presiding, he called up the
cause again, and prayed an appeal to the
next term Of the Supreme Court, and gave
a good and sufficient bond and the appeal
was granted. At the same time he ten
dered 20 the Judge his Bill Of Exceptions,
case, and requested him 10 sign, seal. and
make them = part Of the record, which his
Honor, Elijah 4. Hall, refused. who de
elared that he would sign no Bill Of Ex-
ceptions in the case. The record is here
by appeal, and he sBears that he can
not try his cause upon its merits without
the benefit Of said papers, and he has no
means Of procuring the same. He there
fore prays a mandamus against the said +.
L. Hall, either alternative or peremptory,
TO compel him 90 sign the Bill Of Excep-
tions, to be made part Of the record in his
case now pending in this court.
The petition was supported by the afi-
dayits Of the counsel OF the relator who
proves substantially the facts Of the peti-
TONER
The original petition with the afTidavits
and the Bill of Exceptions drawn out are
made part Of the petition. They are set
forth in the Bill Of Exceptions, first. the
notice to VIM. G.. BrownloW Of the appli-
cation TO be made Second the original
petition Of the relator, which states that he
was not present nor IN the country when
Brownlow was arrested and in consequence
Of the disturbed state Of the country could
not sooner make his defense.
The afhdavits Of Thomas w. Holtsinger,
the proprietor Of the Spottswood House,
Richmond, Va, during the months Of No
yember and December, 1861, also the afii-
davit of J. c. Ramsey, who states he caused
the arrest Of w. G. Brownlow the com
mission Of George W. Brown, formerly
Judge Of the Knoxville district all OF
which he prayed to be made part Of the
Bill Of Exceptions, and which are presented
with the affidavit Of the counsel Of the re-
lator.
Two questions are presented for our con-
sideration
lst. Has this court under its organization
and constitutional restrictions, being an APP
Pellste court, the right to award the writ Of
mandamus?
ID. II this court has the right, do the
facts presented in this petition make such a
case as would authorize the issuance Of an
Rlternate msndamus
This is the first application, 20 far as we
have been able 20 learn from the reports oi
the decisions in this court, in the judicial
history Of the State, Of an application "a
this court 10 award a mandamus against a
Circuit Judge, to compel him 20 appear and
show cause why he should not sign a bill OF
exceptions taken in the trial Of cause be
fore him.
Il is a question Of great importance tC
the citizens. Ifthis court has not the iuris
diction to grant the writ there should bt
some legislative action, for without it tht
citizens or suiiors would be without RENE
dy, as we have no statute authorizing 3
mandamus against Circuit Judge in sucl
cases. Section 2,96S Of the Code provides
The facts Of the case being fairly stated
in the bill Of exceptions, the Judge shall
sign the same, which thereupon becomes q
part OF the record Of the cause"
A mandamus is defined 10 be by the com.
mon law writers Of England, common
issuiRg in the Kings name from the court
Of Kings Bench and directed 10 any person,
corporation, or inferior court Of iurisdic.
ton, within the Kings dominions, requir.
ing them 10 do some particular thing there
in specified, which pertains 20 their office
and duty, and which the court of King
Bench hes previously determined. or at
least supposes 10 be consonant 10 right and
Justice" Blackstone adds. "it issues to the
Judges Of any inferior court commanding
them 20 do Justice according 10 the powers
Of their Office, whenever the same Is de-
lsyed." Blacksione's Commentaries, 10
8 Pet l9l. Chief Justice Marshall, in the
last case referred 20, says: "We think il
apparent that this definition, and this de-
scription 70 which it is applicable by the
court Of Kings Bench as supervising all
inferior tribunals extends 10 the case OF the
refusal by an inferior court 60 sign a bill o
exceptions, when it is an act that pertains
10 their Office and duty, though this right
was never exercised by the court of King
Bench in Issuing a mandamus, vet the
power clearly existed" This Suprem,
Court was established by the constitution
in 1884, and il is provided in the constitu
ton, "it shall possess such appellate an,
other jurisdiction as is now conferred bv Law
on the Supreme Court, under sl.ch restric
tions and regulations as may from time L
time be prescribed by law Previous {,
the formation Of this court by the Consti
tuition, the Supreme Court was created b,
Legislative will, and in 1909 by an act o
the Legislature, the Supreme Court was or
ganized with appellate Jurisdiction.
The provision Of the constitution Of th
State in organizing this court is very simi
lar in language 20 the constitution Of tn
United States, under which the Suprem
Court is established. In the cause reierreI
20 Of er pdrte Crane IN which this provision
Of the constitution Of the United States
was under consideration. the court say
A mandamus 20 an inferior court u Ia,
United States is in the nature of an appel
late jurisdiction" The case now unde
consideration is, 10 compel 2 Circuit Judg
10 sign bill Of exceptions 10 make Il
part Of the record Of the case Of which W
have now the jurisdiction. The objec
and purpose Of the writ is 10 carry out anS
perfect the right Of the party appealing