Nance v. Hicks , 38 Tenn. 624 ( 1858 )

Weight, J.,

delivered the opinion of the Court.

The judgment of the Circuit Court in this cause is erroneous and must be reversed.

The petition of Nance for writs of certiorari and supersedeas, contained 'a sufficient cause for their issuance.

It showed that the judgment of the justice of the peace was unjust, and gave a sufficient legal reason for not appealing.

■ The application was made in open Court for the issuance of the writs, during the term of the Circuit Court, which sat next after the rendition of the justice’s judgment, and an order obtained for their issuance, and the necessary bond and security immediately given. This was within time by all the authorities. Newman v. Rodgers, 9 Hum., 120; Johnson & Fenneer v. Deberry, 10 Hum., 439.

We cannot notice the affidavits of D. B. Hicks, S. Norris, J. Farris and John H. Cartwright, because they are not in the record by any bill of exceptions, and are, therefore, no ..part of it. And besides, upon a motion to dismiss the petition of Nance, these affidavits could not be received to contradict the truth of the statement contained in it. 2 Swan, 537; 3 Sneed, 326.

This is enough to dispose of the case. But we are inclined to think the motion to dismiss come too late. The record shows- that the writs were awarded upon the petition of Nance, at the January Term, 1858, of the Circuit Court, the parties appearing by their attorneys, and the motion was not made till the September Term afterwards, passing by the May Term. Dwiggins v. Robertson, 1 Tenn., 81; 3 Sneed, 326.

We reverse the judgment and remand the cause, to the end a trial may be had upon the merits.