Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-23

n a
warrant on defendant Brown, and the
defendants counsel admitted upon the
trial s'thst the warrant was duly executed
upon the defendant as shown by the re-
turn of the officer" In view OF this adj
mission and The allegations in the petition
the counsel for plaintiffs requested the
court to instruct the jury that the only
question for their consideration was
"whether Brown had been lawfully sum
moned before the justice or not" and
that they could not look to the merits or
consider the questions of presentation,
demand and notice; but his Honor re-
fused so to instruct the jury, and sub
mitted these questions with proper in
structions to their consideration.
Although the certiorari is, under the
constitution, pre-eminently writ of
right, it has always been held in this
State that the petition should show mer-
its and sufficient cause for not appealing;
and, in this case, we hold that the petit
ton does not show sufficient cause.
The mere statement that the Pc
titioner did not, after the lapse of more
than five years, ftrecollect" whether the
officer had served the warrant, when OPP
posed to the official return made under
the oath of the officer showing that the
warrant was executed, is not, in point of
fact, denial of the truth of the return.
1t may be, and, doubtless, is true that the
constable duly executed the warrant and
that the defendant had forgotten the cir
cumstance, but his forgetfulness is not
sufficient cause" within the meaning of
the constitution, the Code, or any re-
ported case of which we are advised.
The reason assigned, however, loses all
its force in this case when We look to the
solemn admission, made during the pro-
gress of the cause, that ''the warrant
was duly executed upon the defendant as
shown by the return of the officer. :"
While we do not reverse the cases in
which it has been held that counter Aft
davits cannot be looked to for the pur-
pose of disproving the truth of the facts
stated in the petition, we cannot hold
that there was sufficient cause for not ap~
pealing, with a record staring US in the
face and declaring, the admission of the
defendant himself, made by his
counsel, that he had no cause
whatever for not appealing and
that the impression, intended to be
created by the petition, that process was
not served, was, in fact, untrue. The
statement in the petition itself, is, to say
the least of il, equivocal, and, therefore,
insufficient according to Gillian VS..
Looney decided at our last term in Knox
vile.
The petition in this case contains no
prayer for new trial. 1t simply prays
that "the judgment may be inquired into
and corrected, as he never was cited to
trial, as he now best recollects.". Al
though the facts are stated that demand
was not made and notice not given, the
leading object of the petition seems to
have been, not to obtain new trial on
the merits, but to use the certiOrari and
supersedeas for the purpose of annulling
the judgment and quashing the execu-
ton for the want of jurisdiction in the
Justice growing out of the alleged failure
to serve process. The defendant shifted
his ground entirely in the Circuit Court,
abandoned the question of jurisdiction
and obtained new trial on the merits,
and we held that this was error within
one of the principles declared at the
present term, in Noel vs.. Scoby and &C
cording to Hollins VS.. johnson, Head.
BAT.
The views announced upon these ques-
tons are decisive of the case, and dis
pense with the necessity of determining
other interesting questions raised in ar
gument
Reverse the judgment and render the
proper judgment here for the amount of
debt, interest and damages, as prescribed
by law, and also for costs.
NELSON, Judge.
A true copy:
F. G. DUNNINGToN, Clerk.