Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-12-04
NEUTRALITY-SUSPICIOUS. CASE
Judge M. M. Brien's Decision.

comment:
Upon this motion, to dismiss, we car
look alone to the face of the petition, the
record and exhibits referred to and made a
part thereof, as upon a demurrer, and
take the same az true. Then was this re-
fusal Of the officer to do this act as directed
by law, a judicial sentence, Judgment on a
case determined by the County Court
Judge, from which an appeal, writ Of error
on certiOrdYi could be maintained? (Ses
the authorities referred TO, sections 3l47,
3l76 and 3l06, sub. sec. of the Code
The court is of the opinion that it was not
a judicial act, but merely refusal az an
officer to do and perform ministerial OF
executive act as directed by statute, (see
section 3l47 of the Code) "any person dis
satisfied with any sentence, judgment or
decree of the court may pray an appeal TO
the Circuit Court." Then, here is no ac-
ton whatever Of the Judge complained of;
only he would not act and this application
is to force him TO act.
In all cases determined in the County
Court, when either party is dissatisfied
with their final decree, an appeal in the
nature of writ of error may be taken TO
the Circuit Court, or, by consent of both
parties, TO the Supreme Court. (Section
3l4S)
By section 3l76 a writ Of error lies di-
rectly from the final judgment of the County
Court to the Circuit or Supreme Cont, in
cases where a writ Of error wonld have
been. But, az before shown, here is no ac-
ton, Judgment, sentence or decree, cOnse>
quently, no appeal or no writ of error,
and, therefore, no eertiOrdri as provided IN
sub section Sd of section 3l07 of the Code.
To sustain this motion the defendants
RELY upon Caruther's History of a Law
Suit, section $50. Then, take the position
to be true, as before shown, and this is an
authority directly against the defendants.
This book and the authority there cited
establishes this principle, viz: that when
an officer, corporation, court, or person re-
fuse to do what they are legally bound to
do, and the person aggrieved has no other
adequate or specific remedy, he may have
his writ of mGnddm1tS. That is the case as
presented by the petition.
1t being the duty of the Judge TO re-
ceive, file and record this copy of the will
and 10 proceed as directed in sections 2l82,
2lS9 and 2lS4-on his peremptory refusal
to do so, the plaintiff was entitled to this
writ to compel him to act-not to revise
any act, but to do and perform an act
which, as a Judge, he was bound to 40 !;
and the petitioner having no other ade-
quate specific remedy, mGnddmus was the
proper, if not the only, remedy. For these
and other reasons the motion TO dismiss
must be disallowed.t
2. This point being disposed of, We will
now consider the cause upon the merits,
the issues and the causes assigned, with
the proof, etc, etc.
As before decided, the petition presents
a primd facie case for a manddmls; hence
an alternative writ; hence the answers and
causes as stated in a former part of this
opinion. First, each party introduces
proof as to the domicile of said testatrix,
the petitioner insisting that this is for
eign will (for this the proof is heard) and
properly proven as required by Sec. 2lS2
of the Code, and sufficient at least TO pass
all the personal property, wherever found
in any State, but that it was necessary to
have copy filed and recorded here and
letters testamentary issued, in order to
enable him to reduce the personally to
possession, collect debts, etc, and relies
upon sec. 2lS4 Of the Code Again, the
court is of the opinion that if the facts were
as contended by the petitioner, the law is
with him (see sec. 2l84), "When the last
will and testament of any person deceased
is proven in a court of any State or terri
tory of the United States, any person in
terested may present copy thereof, duly
authenticated, to the County Court in the
State where the land or estate devised or
disposed of by the will is situate and there
upon such court may order the same to be
fled and recorded, and, when done, said
copy 10 have the same force and effect as if
the original had been executed in this
State"
The counsel for the petitioner do not in
sist that this will was so proven in Penn
sylyania as to pass real estate, when
admitted to record here, as required by
section 2l85 of the Code But suppose that
it was proven in the common form, and
authenticated under the act of Congress of
1890, chapter IL, all that was necessary
was for the executor TO qualify and give
bond here, under section 2l89 of the Code
If this was the only issue, and the facts
were as commended by the petitioner, the
court would most certainly order a per-
emptory mdaddmus, without deciding the
issue az TO the domieil, fraud, etc, which
we are not certain could be made here on
this form. But an Issue upon a cause aso
signed in the answer is made in due form,
to-Wit: that said will was improperly and
fraudnlently admitted to probate in COM
mon form in the State of Pennsyls
vania, that not being the residence OF
domicil of the testatrix at the time
of her death; that she was only there
on a visit when she died that her
home, residence and domicile was in Da-
wilson county, Tennessee. Notwithstand-
ing this issue the counsel argue with
great deal of zeal and ability that this
issue has nothing 10 do with the question,
and that we are bound by the record Of
the State of Pennsylvania, which they say,
is conclusive. This must have been so as
to the Judge, upon an original motion and
no contests, bat the parties in interest now
come and present this cause, and an issue
is held upon it, the proof heard and sub-
mitted TO the court. Is this conrt at
liberty TO treat this issue as a nullity
Certainly not And further, while the
proof is somewhat conflicting, the weight
and preponderance is in favor Of the re-
spondenls; consequently the probate in
common form in the State of Pennsylvania
was nullity, the court having no iuris-
diction. (See 33, Miss. Reports, Baily rs.
Osborn's executors
Sd. Respondents insist that said copy
was no will, that, as before said, it
was obtained by fear, force and
fraud, and although proven in common
form in the State of Pennsylvania, copy
was certified and presented in Davidson
county, to be filed and recorded by the
petitioner, when Nareissa p. and John F.
Saunders, being interested as before shown,
appeared, as they had the right to do under
section 2l90 Of the Code of Tennessee, and
contested the validity Of said viii. This
section of the Code provides THAT any
person interested to contest the validity Of
such will may do so in the same manner
as though il had been originally presented
for probate in said court" {See sec. 2l90.)
This copy was in due form, properly certi-
fed, etc; the contest was accepted the
issue, deiisdrd oel non, duly and properly
certified and sent up TO the Circuit
Court, there tried by the court and jury,
verdict and Judgment rendered against the
will, as stated in this issue, and the petit
toner acquieseed therein-all of which ia
fully proven by the record and not denied.