Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-21
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph ID. HeisIKeli, Attorney-Gcn-
eral and Reporter.
No. 153.
R. G. Glover, administrator, etc., VS.. Holman and
Shepherd.

R. G. Glover, administrator, etc., VS.. Holman and
2 Shepherd.
OPINION.
Suit was brought before justice of the
peace of Robertson county upon note
for $50, executed by w. 81. White, pay
able to defendant, Holman, due 25th De-
cember, 1868.
The warrant issued LIST August, 1859,
against White, the payor, and the defen-
dant, Holman, the payee, in favor of 7.
B. Matthews for the use B. Clinard.
The constable to whom it was issued,
returned it with the following endorse
msnt:
Executed and set for hearing on the
goth day of October, 1859, before Jesse
B. White, at - o'clock, this 18th Oc-
tober, 1859. D. L. RAuIs, Constable.
On the 25th October, 1859, judgment
was rendered against W. H. White and
defendant Holman, and defendant ]. D.
Shepherd, by the name of J. Shepherd,
was entered as stayor, as appears from
the record.
In May, 1866, an execution issued
against Holman and Shepherd, and was
levied upon the property of Shepherd,
and thereupon he and Holman file their
petition for Writs of certiorari and super
sedeas, alleging that White, the payor, is
dead, and that the said judgment IS void
and unjust as against them. The said
Holman alleges that he knows nothing
of the said note, never heard of it nor
had or owned any such note, was never
summoned upon the warrant and had no
knowledge of said judgment until the ex-
ecution was issued few days before the
filing of the petition.
Defendant Shepherd states that he nev-
er stayed said judgment, nor authorized
any one to enter his name as stayor, that
his name is James D. and not j. Shep~
herd.
Petitioners also charge that the judg-
ment is void because the day fixed by the
Constable in his return, for the trial, was
29th October, and the judgment was rem
dered 18th October, as appears from the
warrant and return thereon.
The cause was brought into the Circuit
Court and the defendants at February
term, 1857, entered motion to quash the
execution upon the ground that the judg-
ment upon which it was founded, was
void upon its face.
The court being of opinion that the
judgment was void upon its face quashed
the execution and the plaintiff appealed in
error to this court.
In this we think the Circuit Judge
erred. The judgment upon its face was
not void, although it was irregular. Upon
the face of the papers the warrant seems
to have been regularly issued and served
upon defendant Holman and defendant
Shepherd appears as stayor of the judy
ment. The Justice therefore upon the face
of the papers had jurisdiction of the cause,
but his rendition of the judgment at a
different day from that fixed for the trial
made such judgment irregular and errone-
Gus.
The case of West VS.. Williamson
Swan, 277, is analogous the present case.
There the execution was quashed by the
court below, because the judgment of the
Justice was rendered upon a day subse-
quent to the day fixed for trial. This
court said the judgment WAS not void,
and there was no reason for quashiDg the
execution, but defendant not having had
notice of the time of trial, nor opportunity
to make his defense should have another
trial, snd ordered the cause back to the
Circuit Court to be tried upon its merits.
In this case the defendants had no notice
of the time of trial the cause having been
tried before the day fixed for the trial.
The judgment of the Circuit Court must
therefore be reversed and the cause re-
manded, that the defendants may have
opportunity to make the defenses relied
upon in their petition, and especially is
this the appropriate remedy in this case,
as the certiorari is invoked by petitioners
solely for this purpose.
They do not ask that the execution may
be quashed, but pray that the cause be
brought up into the Circuit Court to be
retired. DEADERIOK, Judge.
a true copy, attest: