Mankin v. State , 32 Tenn. 206 ( 1852 )

TotteN,- J.,

delivered tbe opinion of tbe court.

John Mankin was convicted and fined on an indictment for obstructing a public road, and bas appealed in error to tbis court. On tbe trial, tbe attorney for tbe State, produced and read in evidence, a record from tbe county court, purporting to lay off and establish tbe road as a public road, to wbicb defendants below, objected.

Tbe record is bad, because it does not appear that there was a competent court to order and appoint a jury of view; nor again, in tbe coming in of their report, to confirm tbe report, and establish tbe road. A competent court for these purposes, consists of twelve, or one third of tbe acting justices of the county; but three are competent to appoint overseers of roads. 1804, ch. 1; 1835, cb. 6. Tbe fact of a competent court may appear in tbe caption of tbe record, or be recited in tbe order, as that twelve, or one third of tbe justices were present. But here there is no caption, and no'such recital.

It is also objected, that it does not appear that tbe jury were freeholders, or that they were sworn, except by their own report; in that they say, that they were freeholders, and duly sworn. This,' we think sufficient. If a competent court appear, every presumption is to be made in favor of tbe regularity and correctness of tbe proceedings; for it is- a court of general and exclusive jurisdiction on tbe subject of public roads. And when a public road bas been established by a competent court, and its judgment therein remains unreversed, it is not competent, in a collateral proceeding like this, to show informalities and defects in the orders taken in the county court, to establish it. But the person interested must object to the proceeding when it took place, or otherwise reverse it upon appeal in error. 1811, ch. 3; 1819, ch. 26.

Under this latter act, parol evidence, of the public character of the road, is made competent to establish the fact, prwna, fmu, until the contrary appear by the production of the county court records; from which it may appear that its action was void, for 'want of a competent court, or that the road has been discontinued, or the like. Let the judgment be reversed, and the cause remanded.

Judgment reversed.