Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-06-06
THE CONTESTED ELECTION.
THE HEARING OF the MANDAMUS CASE
BEFORE JUDGE REEVES.
The Writ 0uashed on Account of lnfOr-
maIity.
Another Writ Obtained, and the Hearing
Set for Next Saturday.

At half past one O'Clock yesterday the
mandamus case of Gen. Vim. Wallace VS..
3. E. Williams, COMMISSIONS of Regis
~tration for Shelby county was called be-
fore Judge Reeves in the Circuit Court.
The defendants counsel, Messrs. Chas.
Kortrecht and Luke E. Wright, moved to
quash the writ for defects apparent upon
its face. In the argument to sustain the
motion, the counsel for defendant tool
the position that the writ was fatally de-
f~ective; that it was insufficient for three
reasons: First, That the writ was not di-
rected to the defendants; Secondly, That
the writ did not contain the charge to
which he must respond; and Thirdly,
That the writ was not left with him so
that he might know the charge embodied
therein. 71rE
Counsel hen argued that a writ of
m~dnddBuS ought TO be directed to the per-
| son who was to do the act desired, and
not to the Sheriff, asin the case before the
Court, that it should state the rights of
the applicant clearly and distinctly, as
also the wrong or default of the defend
ant, so that they might be admitted or
traversed; that the writ stood in the place
of q declaration and had all the qualities
of pleading; that it was a high prerogative
writ, and one to which the common law
was still applicable, though the statutes of
Tennessee had abolished the technical
forms of the cOmmOn law; it was argued
further by defendants counsel that there
was still another objection to the writ,
and that was that it did not mention the
name of any third person interested in
the event of the canse which ought to
have been done, the law being imperative
on that point, in order that such person
could come forward and defend the same,
and that even if such third person had
have been mentioned in the writ, there
were no charges incorporated in the same
concerning which he might be notified
that upon the whole the writ before the
Court was not a writ of ~mGndamuS, but an
ordinary summons, a mere skeleton and
altogether insufficient to perform the SER
vice required; that it could not be
| presumed thai the Legislature of Tennes-
see ever intended to so change the prac-
tice of the common law, relative to the
writ of mandamus, so as TO substitute in
lieu of it an ordinary summons. Counsel
for the defense cited the following author
tiles to sustain them in their position:
BacOn's Arrangement, Angel and Ames
on Corporations, Caruthers' Law Suit,
sec. SIS; also Code, sections 1867, 377l.
The relator was represented by Messrs.
Randolph, Bullock, Pierce, CAN'T and
Sale. The counsel, in their argument
against the motion, fought it upon the
principle that the objections raised to the
writwere merely technical and not tena-
BILE, and that even if there was an infOr-
mality in the writ, the defendant had
waived all right to take advantage of the
same, by appearing in Court through
counsel, and by so appearing had implied
" thrown himself on the merits of the
case; that it was the duty of the Court to
see whether the writ had answered the re-
ouirements of the laws of Tennessee, and
if so, technical rules and forms were to be
disregarded: that the case then before
Court did not come within the reach
- #Va aav,a~,a. Inr- Ivrf r-ng uATrfHall-
ed by the statnte law Of Tennessee,
which had swept away the rigid rules
incident 10 the practice at common law.
The counsel for plaintiff continued 10
argue that ii was defendants duty to an
swer the petition of the plaintiff and not
the writ, as at Common Law, and that
since the object of the action had been ae-
cOmplished to the extent of bringing de-
PENDANT into court, he should not be per-
mitted to avoid an investigation of the
charges against him through a mere tech
nicality and thus be able to acLGe. the pre-
judiee of the plaintiffs rights ~ the pre-
misses. To sustain the position taken
counsel cited Moses on mandamuses and
the statutes. Court held that the motion
was well taken and ought to be sustained,
and ordered that the writ he qUasbed.
Plaintiffs counsel then made a motion to
amend the writ, but the same was over
ruled. PLAINTIFFS counsel Immediately
thereafter moved the GOurt Tor an alias
writ of alternative mandamus, which was
granted, and the Clerk was directed to is
sue forthwith a new writ in accordance
with the fiat on the petition, returnable at
10 o'clock on the morning of the 1lth
instant, to which time the case is post
poned; and in the meantime the defend !
ant as Commissioner of Registration for
Shelby county, is ordered TO absolutely
refrain and desist from issuing 10 any per
son WhomsOeveT, n certificate of election
to the office of Judge of the Criminal
Court of Memphis, and from making a
return TO the Secretary of the State of the
election of Judge of said Court, and from
counting the votes east for the candidate
of said Office until the determination of
this suit, or until further ordered by the
COurt.