Osborne v. Poe , 25 Tenn. 111 ( 1845 )

Turley, J.

delivered the opinion of the court.

This suit was commenced by James Poe against Wm. Osborne, Wm. P. Osborne, Willis Osborne and Edward Osborne before a justice of the peace, for maliciously killing a cow of the plaintiff.

The justice gave judgment against the defendants, jointly, for twelve dollars and costs. This judgment was afterwards removed by writs of certiorari and supersedeas into the circuit court of Franklin county.

At the March term, 1844, of said court, the writs of certiorari and supersedeas as to Wm. P. Osborne, Edward Osborne and Willis Osborne, were dismissed and the judgment of the justice of the peace affirmed as to them; but the case was retained in court, as to Wm. Osborne; and at the September term, 1845, of said court, there was a verdict and judgment against him for five dollars and costs. And it is now contended that this judgment is erroneous, because of the previous judgment against the other defendants. We do not think that the question sought tobe raised upon this state of the case exists. This is not like the case of a joint action against several, in which there are several verdicts, and several judgments, the effect of which, we do not choose to consider now; but is a case in which a joint judgment has been rendered in an inferior tribunal, which was prosecuted by certiorari and supersedeas to a superior one, where it was held that the case as regarding three of the defendants, was erroneously brought into that court, and they were dismissed from it; but the court, instead of turning the plaintiff over to his judgment against them before the justice, as it ought to have done, affirmed the same.

This case, then, as we think, stands as if the defendant, William Osborne, had appealed from the judgment of the justice, leaving it before him as to his co-defendants; in which case, there would have been a good and valid judgment against them, which certainly would not prevent the plaintiff from prosecuting his suit in the circuit court, to a judgment against him, unless satisfaction was previously had out of the other defendants upon the judgment before the justice.

We therefore think, that the judgment in this case is not erroneous, and affirm the same.