Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-05-06
[oFFIcIAL.
SUPREME COURT DECISIONS.
Nashville, December Term, 1869
Thomas HI. Coldwell, Attorney
General and Reporter.


Thomas HI. Coldwell, ATTORNEY
General and Reporter.
Mason VS.. Hammons and Nicely
This cause was removed into the Circui
Court of Cannon county upon the petition
of the defendants in error.
The plaintiff in error moved the Cour
to dismiss the petition, which motion wa
refused, and the cause was tried upon it
merits. A verdict and judgment wer'
rendered for the defendants in error. a
motion for new trial having been re
fused, an appeal in error is prosecuted t.
this Court.
The only question presented to thu
Court is, did the Court err in overrulinG
the motion to dismiss the petition?
The petition was filed on the Oath o.
April, 1866, and alleges in substance thai
Hammons, one of the petitioners, pur
chased horse from Mason on the 29tt
of November, 1861, at the price Of
$1,000, for the payment of which he
executed his note with petitioner Nicely
as his surety, payable to Mason, and due
twelve months after date.
AT the time of the purchase HammOnf
was soldier in the Rebel army, which
fact was well known to Mason, and
Hammons purchased the horse expressly
to be used as cavalry horse in the Rebel
service.
That the horse was diseased and sick
ened and died on the next day after the
purchase, and was of no benefit to Ham
mons for military service, or otherwise.
Mason brought suit on the note, and
petitioners were summoned to appear be-
fore one E. Stephens, Justice of the
Peace for said county, on the 18th of
July, 1865, at which time they appeared
to answer, and being of the opinion they
were not liable to pay the note, because
the contract was illegal and against
public policy, and because of the un-
soundness of the horse, they agreed
to leave the matters in dispute to W. B.
Nokes and +. Coleman, who were to de-
eide the suit according to law and evi
dence, and whose decision should be final;
and from which there should be no ap-
peal, and entered into an article of agree
ment to that effect.
was submitted to arbitration, but not in
accordance with said articles; that Nokes
and Coleman did not decide it, but that
Nokes and said Stephens done so, with
out any written agreement authorizing
them to do so as arbitrators, and as petit
TONERS are advised, not in accordance
with said agreement, who decided against
petitioners, and thereupon the Justice
rendered judgment against them for the
sum of 1927 81.
Petitioners further state that they
proved upon the trial before the arbitra-
tors that the horse was purchased to go
into the Rebel service; that the
same was well known to Ma
son; that the horse was, unsOund, etc.
They say they did not know at the time
that the arbitration was illegal because it
was decided by men different from those
named in the articles of agreement and
not in accordance Herewith, and was adj
vised by the Justice who tried the case,
that they could not appeal, and were
bound to pay the judgment, and believing
what the Justice said and that they would
be compelled to pay said judgment-they
procured execution thereon to be stayed.
They say, ''the reason they did not
appeal from said illegal and unjust judy
ment was because they were so advised
by said Justices who tried the case, and
thought they were compelled to pay the
same" They further say, the reason
why they had not sooner made applica-
ton TO remove the cause into the Circuit
Court by certiorari was ''they still
thought they were compelled to pay said
unjust judgment and had no right to an
appeal or any other remedy until they
were advised to the contrary" and that
as soon as they were so advised they
made this application.
They pray that the cause be removed
into the Circuit Court and that a new
trial be had.
The reason assigned in the petition for
not appealing from the judgment of the
Justice was certainly sufficient to have
authorized the removal of the cause into
the Circuit Court by certiorari, if an ap-
plcatiOn therefor had been promptly
made.
AS appears from the record, this suit
was instituted on the 18th of July, 1865,
and the judgment complained of was rem
dered on the Doth of July, 1865. The
defendants, as they show by their petit
ton, were present at the trial, with full
knowledge of all the defenses which they
now seek TO set up to the suit, and as they
aver made proof of the same. After the
rendition of the judgment they procured
a stay of execution thereon, after which
they silently aCquiesced in the judgment
until the 24th of April, 1866, period of
nearly nine months subsequent TO the
date of the judgment, and nearly one
month after the expiration of the stay of
execution.
The only reason assigned for this great
delay is, "They still thought they were
compelled to pay said unjust judgment,
and had no right to an appeal or other
remedy"
1t is true that the rigid rule of practice
by which the remedy by certiOrari was
regulated when it was less valuable than
now, owing to the then limited jurisdic-
ton of justices of the peace, will be re-
Taxed in proportion as the value of that
remedy may be enhanced by an increase
of that jurisdiction. But it is also true
that ''it is well established rule of prac.
tice In this State that certiorari when
sought to be used as substitute for an
appeal must be applied for at the first
term of the Circuit Court, after the rendi.
ton of the Justices judgment, unless
some sufficient cause for the delay be
shown in the petition"
We do not pretend to say but case:
may arise in which the delay may have
been as great as in this case, and yet, with
out fault or Jdches upon the part of the
petitioner, hut such is not this case.
In cases like the present, we think thu
most satisfactory and cogent reasons fol
the delay ought to be shown i'll the peti
ton to authorize the issuance of the writ
This petition discloses no such reasons
we are, therefore, constrained to hold
the refusal of the Circuit Judge to dismis
the petition upon motion was erroneous.
The judgment of the Circuit Court viii
be reversed. The petition and certiorar
will be dismissed, and judgment rem
dercd here according to the provisions o
the Code, section 3,137.
HAWKINS, Judge.