Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-23
SUPREME COURT DECISIONS
December Term - Nashville,
1870.
Joseph Ii. HeiskeII, AttOrney-Gens
eraI and Reporter.
No. 46.
Smith & Scruggs VS.. ". B. Brown.
nDTNTnN

Samuel and R. L. Scruggs obtained
judgment for $75. SO and costs, before
Justice, against Brsnsford Boyd and A.
L. Boyd, the makers, and W. R. Brown
and Walker Phillips, the assignees Of
promissory note for seventy-ive dollars,
bearing date September ii, 1859, and
due on or before the first day of March
next ensuing, payable to John johnson.
johnson seems to have Endorsed the note
to Brown, and Brown to have assigned
it in due form to Walker Phillips, by
whom it was also assigned to plaintiffs.
These assignments are without date, but
written upon the note.
On the 22d June, 1860, the Justice is
sued an execution which was levied by
constable, % June, 1860, on the land of
Bransford Boyd. The papers were, prob
ably, returned to the Circuit Court, and
the land condemned to be sold at the
August term, 1860, of the Circuit Court
of Putnam county. Such, at least, is
the averment in the petition for certiora-
ri, although the order of condemnation
does not appear in the record. 1t may
also be inferred, from the allegations in
the petition and the recitals in the execu-
ton, that nothing was made by the pro-
ceedings against the land which was sold
to satisfy eight prior orders of
sale. On the Nov. 1866, an
execution was issued from the
Circuit Court against the defendants
in the Justices judgment for the amount
thereof, with interests and costs; and, on
the 14th of November, 1865, W. R.
Brown, one of the defendants, presented
his petition to Hon. w. w. Goodpssture,
Judge of the fifth circuit for writs of
certiorari and supersedeas, and obtained
from him a fiat, in the usual form, for
writs as prayed for in the petition, on
the petitioner executing bond, etc. Bond
was executed and the petition filed on the
same day, and on the next day writ of
supersedeas was issued, (15th November,
1869 1t does not appear that any writ
of certiorari was in fact issued, but the
bond for certiorari is in due form and the
papers appear to have been regularly filed
in the Circuit Court.
At the December term, 1865, the
plaintiffs moved the court to dismiss the
petition, but their motion was oVerruled;
and at the August term, 1866, the cause
was submitted to jury, who found ''the
matters in controversy in favor of the de-
PENDANT" Before the jurors were en-
pannelled, the plaintiff, as the record
states, moved 'to call the defendant out
and take judgment against HIM for want
of written plea, which motion was over
ruled by the court. Judgment was rem
dered against the plaintiffs for costs, and
failing to obtain new trial, they ten
dered their bill of exceptions and ap-
pealed to this court.
From the bill of exceptions and the
charge of the court, it seems that the
only question submitted to the jury was
the question of fact as to whether proper
steps had been taken by the plaintiffs, by
demand and notice, to fix the liability of
Brown as endOrser; and it not appearing,
in proof, that any demand was made, or
notice given, the jury found the matter
in controversy for the defendant. 1t is
now insisted, for the plaintiffs, that the
court below erred in refusing to dismiss
the petition for writs of certiOrari and
supersedeas, and that all subsequent pro-
ceedings in the Circuit Court were erro-
neOus.
The petitioner alleges, in substance, that
the note was transferred before its ma
turity that he never had notice of its
nOn~payment; that the makers were SOL
vent at the dates of the Judgment and
execution; that petitioner ''has no recol-
lection of ever having been notified of
said trial or judgment, although the war
rant appears to have been returned exc
| cuted;' that he was "taken completely
by surprise " when the execution was is
sued from the Circuit Court, and levied
on his property; and that said petitioner
''would have seen to his interest. long
since, but for his want of knowledge Of
the existence Of said liability" The pc
toner, in his prayer, tasks for a writ of
supersedeas, to bring up said execution
that the same may be quashed; and for
writs of certiOran that said judgment be
inquired into and corrected, as he never
was cited to trial, as he now best recol-
! lects."
An agreement, signed by the Gounsel
for both parties, is set out in the bill of
exceptions to the effect that J. G. Fetch
er, the officer who executed the warrant,
would, if present and sworn as a wit
ness, testify that he duly executed the