Norris v. Wilber , 60 Tenn. 365 ( 1872 )

Deadeeiok, J.,

delivered the opinion of the Court.

Elizabeth Norris sued Pauline "Wilber, before a Justice of the Peace of Davidson County, and recovered a judgment for $25, on the 28th of November, 1870, from which judgment an appeal was prayed and granted to the Law Court of Nashville. And at the April term of said Law Court, the plaintiff appeared and had the judgment of the Justice of the Peace affirmed. The defendant afterwards — to-vyit, in July, 1871 — filed a petition for a writ of error coram nobis, asking that the judgment by default be set aside and the case reinstated on the docket, to be tried on its merits. The plaintiff, thereupon, moved the Court to dismiss the petition, which motion was sustained by tbe Court; and therefore the defendant has brought the case into this Court by writ of error to have the whole case reviewed.

The defendant seeks a reversal, on the ground that the Circuit Judge erred in dismissing her petition. In order to decide whether he committed an error or not, it will be necessary to refer to the petition. The errors of fact relied upon in the petition are, that the judgment by default was taken against her in both the absence of herself and her attorney, whose name was marked on the docket, and that she was a married woman at the time. She states in the petition that she had a good de-fence in the form of a set-off. She also states that she was a married woman at the time the action was brought against her, and also at the time the judgment was rendered. To obtain the benefits of the writ by § 3,117, it is sufficient to show the infancy at the time of the rendition of the judgment, of petitioner. So the disability of coverture not appearing to the Court at the time of the rendition of the judgment, equally entitles the defendant to the writ. The petition distinctly alleges this, and it was error to dismiss the petition.

Reverse, and remand the cause.