Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-01-11
HAWKINS.

After judgment has heen stayed before Justice
of the Peace. the cause cannot be removed TO
the Circuit Court BY writ of certiorqTi, with
ont application at the first succeeding term
after the rendition of the judgment.
John A. Brinkley vs Harrison Burney, Admin
istrator of Wesley Burney.
The sole question presented in this re-
cord is whether the court erred in dismiss
ing the petition Of the plaintiff in error for
a certiOrari.
The Judgment before the Justice was
rendered on the 28th of June, 1866, and
execution thereon was stayed by order of
one w. J. Frey and on the 25lh of Feb.
ruary, 1867, nearly eight months there
after, application was made to remove the
cause by eertiorari into the Circuit Conrt
for trial de aOuO, on the ground that the
Judgment was founded upon a note which
had been given for a horse TO be used in
the Rebel army.
The note appears to have been in 1861,
for Sl2O, and due and payable at twelve
months from date
The petition for CeTtiOraTi alleges that
the petitioner at the trial before the Justice
knew all about the facts relied ou as form-
ihg the ground OF merits in the petition
and that the plaintiff below also knew The
same facts; but petitioner did not know at
that time that he copld prove plaintiffs
knowledge Of the service for which the
| horse was purchased, or he would have APP
| pealed. But he has since ascertained that
he can prove that fact, and therefore he
has applied TO remove the eaase to the Cir
| 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 dismiss-
ing the cegtiOrdri? We think not. IL is a
well established rule of practice in this
State that a certi0rdri, when sought 10 be
used as a substitute for an appeal, must be
applied for at the first term of the Circuit
Court after the rendition Of the Justices
judgement, unless some sufficient canse for
the delay be shown in the petition. Any
other rule would render judgments very
infrm and unstable, and often work great
hardships upon innocent parties. John q
man rs. Rogers, Hum, 100. McHenry
rs. Mitan, 2Swan, 176.
But cases may arise in which the delay
is certainly excusable, but such cases Oc-
cur when there is no iaches justly charge
able to the party applying for the writ.
This case does not present a state of facts
free from this objection.
The record clearly shows the petitioner
had full notice of the trial before the JUS
tice, where il was his duty to have ap,
peared, and with all proper diligence
ayailed himself Of every just defense in
his power. He knew at that time that the
plaintiff below had knowledge of the de-
defense, which he now seeks to avail him.
self of, but made no application by peti.
ton, or otherwise, for discovery under
the provisions Of the Code, sec. 3S9l-2
nor does it appear that he attempted TO SCI
up any defense whatever, but promptly
and without asking an appeal, procured
the stay of the execution and remained
quiet until after the judgment was trans
ferred, and the stay Of execution almost ex
! pired, and then makea this application &c
remove the cause by cerfiorarj into the Cir
cult Court.
Such Lachts under our practice cannot III
; allowed, at least without showing diligence
in procuring the testimony upon which th'
) party relies in his petition, which in thi
} case is not attempted to he shown.
, Afirms the judgment. MTrIIGAE.