Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-11-04
NASHVILLE, TENNESSEE, DECEMBER TERM, Is

L
THOMAS H. coLDwEIL, ATTORNEY GENERAL AND REPORTER
JnHN A. BRINKLEY rs. HARRISON BURNEY, AID
MINISTRATOR OF WESLEY BURNE1.
The sole question presented il this record is whether
the court erred in dismissng the petition OF the
in error for a certiorari. ,
The Judgment before the justice rendered on the
2Sh of June 1866 and execution thereon was stayed oy
order of one W. J. Frey and the 10th OF February,
1857 nearly eight months thereafter, application was
made 10 remove the by cerOrari into the Circuit
Court for trial de novo the ground that the Judg-
ment founded upon note which had been gwen iOr
a horse to be used in the rebel army -.
The note appears to have been given IN leo Ior Sl-V
and due and payable at twelve months from date.
The petition for cerOrsr alleges that the petitioner
at the trial before the Justice knew all about the facts
relied on as forming the ground Of merits in the petition
and that the plaintiff below also knew the same faets
but petitioner did not know at that time that ne eouo
prove plaintiffs knowledge Of the service for winch the
horse was purchased, lie would have appealed But
he has since asceraned that he prove that fact and
therefore he has applied - the cause to the Cr
cult Court for a new trial.
Now are these averments in the petition sufficient to
Justify this court in reversing the action of the Circuit
Court in dismssing tho ccrOraTi We think not Ii
is well established rule Of practice in this State that
certorar when sought to be used as substitute Tor an
appea must be applied fer at the first term Of the Cir
cult Court after the rendition Of the Justices Judgment
unless some sufficient for the delay be shown IN the
petition Any other rule would render judgments very
inrm and unstable, anu often WoEh great
upon innocent parties. johnson Fnnor Deberry,
10 Hum, 439; Newman vs. Rogers, Hum, 100 Nc
hurry vs.NIiltan, 2 Swan, 176.
But cases may arise in which the delay IS certainly
exeusabe but such where there no aehes
Justly chargeabe the party applying for the writ
This does not present state Of facts free from this
objection.
The record clearly shows the petitioner had full notice
of the trial before the justice where it was his duty &c
have appeared and with all proper diligence awaited
himself of every Just defense in his power He knew at
that time that the plaintiff below had knowledge OF the
Defense which he seeks to avail himself Of but made
no application by petition, otherwise for discovery
under the provisions Of the Code section 3S9l-92 nor
does appear that he attempted to set up any defense
whatever but promptly and without asking an appeal,
procured the stay Of the execution and remain quiet
until after the judgment transferred and the stay
Of execution almost expired and then makes this appl
cation the by eertOrar into the Circuit
Court.
Such aches under practice cannot be allowed, at
least without showing diligence in procuring the tes1
mony upon which the party relied in his petition which
in this case is not attempted to be shown.
Affirm the judgment
MILLIGAN, Judge.
Attest: j. G. FRAZER, Clerk.