Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-01-18
LEGAL.
Decision of She Supreme Court OF Ten
nessee. al Nashville. December Term.


AoOSs
Reported for the Union and Dispatch by s. J.
Henderson, Attorney at Law.
When defendant pleads non est facfHm on
trial before Justice Of the Peace. such plea
must be fled under oath. otherwise q jndg
ment in his favor would be erroneous
party while laboring under the belief super
induced by the conduct and declarations OF
the Justice on the trial, that the judgment
rendered Is IN his favor instead Of againsth bun,
Is not Guilty of negligence. or tdcAes for not
appealing from such judgment
In such cases a certiOrGrs may be had in lieu
OF appeal, and in proportion to the increased
valae of this remedy, the rigid rules of prae
tiee should be relaxed.
Evans and Jones, adm'rs Ds Evan.
On the 9th of November, 1865. indg-
ment was rendered by Justice of the
Peace for the county of Maury in favor OF
C. G. Jones and Martha Evans, admins
TRAITOR and administrative of the estate of
Jesse Z. Evans, deceased, against James +.
Evans for 1854 IS and cost. On the I'd of
July, 1866, q. ia. having been issued upon
said judgment, James r. Evans presented
his petition to Hon. Hillary Ward, one of
the Circuit Judges for the State, for writs
OF certiordri and superSededs to the end that
farther proceedings under the f. ia. be SUI
perseded, and the cause removed into the
Circuit Court and a new trial had, which
was granted by his Honor, and said petition
was filed. Afterwards, on the 18th Of Sep
temher, 1866, the petitioner fled an amend
ed petition in the casue, and therefore the
plaintiffs moved to dismiss both the origi-
nal and amended petitions upon the ground
Of insuficiency, which motion was sus-
tanned by the court; and therefore a judgS
ment was pronounced against the petitioner,
and his security for the amount Of the JUS
tees judgment, with interest and cost, from
which the defendant has appealed TO this
court.
The petitioner states that the note upon
which The Judgment was founded was a
forgery, and when the officer summoned
him % appear before the Justice for trial,
the Petitioner stated to the officer said note
was p forgery; that he attended before the
Justice on the day of the trial for the pur.
pose of making said defense; that when
the case was called for trial, he stated to
! the Justice that said note was not his act
and deed that the Justice, after examin-
ing the note, replied that he knew the sig
nature of the petitioner, and was himself
willing 10 swear that it was not his signas
ture; by which petitioner understood the
Justice had decided the case in his favor,
and had disposed of it so far as he was con-
| cerned that the petitioner went away
fully believing that the case had been de-
cided in his favor, and was induced so to
believe by the declarations and conduct Of
the Justice. Petitioner states that. the
judgment is unjust, and did not know the
same had been rendered against him until
the 18th of June, 1866, when the officer
came to him with the execution issued upon
said Judgment.
The ground relied upon here in support
of the motion TO dismiss the petition, and
of the Judgment of the court sustaining
the motion, is that the petition fails to dis
close any sufficient reason for failing to APP
peal from the judgment of the Justice
And it is argued that the petitioner was
bound to know the law, and knowing the
law he knew he could not have availed
himself of the defense which he relies up
on, except by plea Of non est fdctum under
oath, and therefore knew he was not legal
| ly entitled to judgment in his favor with
out such plea having been filed. However
plausible this argument may be, we do not
think it meets the allegation in the peti
| ton. The Justice certainly had the
power and the right to have rendered a
Judgment in favor of the defendant, with
out the filing of plea of non est tdct,rm.
Such judgment, however, would as certain
ly have been erroneous. But thallis not the
question. The petitioner states that he
was induced by the conduct and deolara-
tons of the Justice to believe, and that he
did understand and believe the Justice had
decided the case in favor Of petitioner, and
that he went away from the place of trial
believing the case had been decided in his
] favor, and never knew otherwise until the
1lth of June thereafter, when to his sur
prise, the officer called upon him with the
f. td issued upon the judgment against him
How can 1t be said that party has been
guilty Of negligence or idche8 in not appeal
ing from the judgment, while laboring I'M
der the belief superihduced by the conduct
and declarations of the Justice on the trial
that the judgment was in his favor, instead
of against him.
And, if under such circumstance, The
party against whom the judgment is ren.
dered, takes steps to remove the cause into
the Circuit Court by csTtiOrdTi, as soon as
his mind has been disabused Of an ergo
neous belief and he ascertain the Judgment
was against him instead Of in his favor
how can it be said he has been in fault i
The petition disclOses the fact that the
petitioner has meritorious defense to the
action, and we think the reasons stated IL
the petition why the defendant did not APP.
peal from the Judgment of the Justice
are amply sufficient.
The certiOrdri ia a substitute for an ap
peal. In the case of Mccormack and Mil.
Ter rs. Murfree, I'd Sneed, AZ, Judge Tot,
ten in delivering the opinion of the court
touching the questions,nOw under consid-
Grafton, said
When the Jurisdiction of Justice o
the Peace was limited TO small amounts, ;
rigid rule on this subject was of less conse.
quence TO parties, and had tendency Il
terminate expensive litigatiOns, in which
the costs often became greater than the mat
ter in issue. But now the jurisdiction o
the Justice being extended TO FIVE hun.
dred dollars a new trial by jury in more
competent court has become a matter o
greater importance TO the interests anC
rights of the parties.
In this state Of things, We are not disposed
TO adopt the strict and rigid rule of practic
contended for, which must often haV
the effect to repel the remedy by certiOraT
when no fault or negligence can be i'm
puted TO the party, defeat jury trial il
the Circuit Court, and result in injury Il
the rights of suiiors.
In proportion TO the increased value O
this remedy, consequent upon the exten
sion of the jurisdiction of Justices of tn
Peace, the rigid rules oe practice adopte,
'lwhen the remedy was less valuable, OWN
ls> the limited Jurisdiction of Justices of tn
: Pea.c should in our opinion, be relaxed
This, ye think, justice demands. TIL
Judgment OF the Circuit Court will be re
yersed, the motion to dismiss disallowed
> | IL L Ii. =.