Allen v. Primm , 32 Tenn. 337 ( 1852 )

Caruthers, J.,

delivered the opinion of the court.

It is insisted in this case, that the circuit court erred in granting the petition of plaintiff for writs of certiorari and supersedeas, by which the case was removed for a new trial, from a justice of the peace to the circuit court, because sufficient reason is not given for failing to appeal. The reasons given, are, that the services of Hill, a justice of the peace, had been engaged to manage and conduct the suit, as the friend and agent of petitioner, he being old, blind and ignorant, who advised him, when he attended at the proper time to take the appeal, not to take it, as the case would go the same way in the circuit court. Iiis advise was taken, under the idea, that it was given in good faith and without any bias on his mind. The said Hill had told him at first, when the warrant was taken out, that he would not set upon the case but, would attend to it for him. But he afterwards ascertained that Hill had set upon the case, and united with Justice Nelson, in giving judgment against him. Hpon the discovery of this fact he presented his petition to the circuit court of Williamson, to bring up the case for a new trial. That the merits were sufficient is not controverted, and the verdict of the jury, in favor of Primm, is conclusive.

We think the reasons given for not appealing are sufficient. The fact that a party litigant acts upon wrong advice given by a neighbor, friend, or even a lawyer, might not answer as an excuse, but, in this case, the wrong counsel was given by a member of the court, who might feel disposed to sustain his own judgment, but, in addition to that, he had deceived Primm, by pretending to be his friend in the case, and controling him by his advice, when, in fact, he had, contrary to his assurance, sat as a judge upon his case, and decided it against him. The jurisdiction of magistrates has now become so much enlarged, embracing more than nine-tenths of all the litigation of the country, it is important to guard their purity with a more watchful care.

It will not do to allow tbem to become counsellors and judges in tbe same case. This old man, wbo bad been shamefully defrauded, bad made up bis mind fully to appeal, from wbat be regarded as a most unjust judgment, and was prevented from doing so, by one of tbe judges, wbo pretended to -be bis friend and impartial adviser; and sucb, be bad a right to consider him, from wbat bad previously occurred between tbem. But, it appears that as soon as be ascertained that Hill bad sat upon bis case, and consequently, that bis advice might not be disinterested and impartial, be immediately renewed bis original intention, to have a .re-investigation of bis case, and filed bis petition.

There was no negligence here on tbe part of petitioner, but be was misled by tbe wrong counsel and breach of trust of one of bis judges. "Whether tbe magistrate so intended it or not, be caused a loss and injury to this unfortunate old man, which ought to have been redressed.

Tbe judgment of tbe circuit court will be affirmed.