W. and A. Trigg v. W. and J. Boyce , 5 Tenn. 100 ( 1817 )

An attachment issued against the defendants at the instance of the plaintiffs, in the year of our Lord 1812, upon which judgment was entered October, 1813. A petition for a certiorari was obtained for W. Boyce by N. Boyce. November, 1814, and acertiorari issued and a transcript of the record, which was dismissed in the Circuit Court in the year 1815. A new petition was then filed for another certiorari, by William Boyce, and another by Nancy Boyce, the administratrix of John Boyce, deceased, which were consolidated by consent. It was dated in November, 1815, and was dismissed in April, 1817. The petitioners state that John was dead at the date of the attachment, and that William was a non-resident; that they were infants when they executed the bond on which the judgment aforesaid was rendered.

Was the first certiorari proper? Is the dismissal thereof a bar to the second certiorari?

The first certiorari if for reversal, was not proper; a writ of error lay for the correction of any error in the proceedings. The judgment on the attachment is a judgment in the common-law form. Acertiorari for reversal only lies in such cases where special jurisdictions are exercised, differing from the common-law forms, and acting under the directions of the law which constitutes them, as justices acting for the removal of paupers and in such like cases; or other commissioners acting as directed by some statute. Their orders or sentences are not recognized as common-law judgments. They are not introduced by an ideo consideratum est; but in the form prescribed in the statute.

Nor was the first certiorari in this case proper, as a substitute for an appeal when prevented or frustrated by fraud or accident. For there the judgment is superseded only so far as a regular appeal would have superseded it. The party using it for this purpose must not postpone his application to an unreasonable period. A judgment not appealed from, nor attempted to be appealed tram becomes exempt from being superseded after the term is over when the appeal should have been moved for. If an appeal was attempted or defeated, then it may be superseded, as an appeal would have superseded it by certiorari removing it to that term of the Superior Court to which an appeal would have removed it, or perhaps to the next term after, if any unavoidable obstacle hindered a removal to the first term. Judgments would be very infirm and unstable if they could be removed without limitation of time by certiorari, and new trials be granted upon them on affidavits. For new trials might thus with great facility be procured when the evidence upon which they were rendered became extinct or not to be produced. The law would prohibit a reversal by writ of error where the veracity of a record might be proceeded upon, and at the same time permit it to be set aside by a mere affidavit. Nothing? could be more pernicious. He who obtains judgment and receives money under it, would be forever liable to refund it, when his evidence was lost by death, removal, accident or time. Matters of record of the highest solemnity would thus be invalidated by a simple affidavit for procuring thecertiorari made by the party procuring it. The practice is, (however erroneous) not to dismiss it on counter affidavits, if enough is stated and sworn to, to render it probable that a new trial ought to be granted. A certiorari obtained for this latter purpose ought to be a bar to the second certiorari for the game purpose,^* otherwise verbal allegations against the judgment might be brought forward adinfinitum. A substitute for the appeal would be made to effect purposes which an appeal itself never could. Every certiorari of this sort should be supported by an allegation, stating a disappointment in obtaining the appeal at the time prescribed by law.

Both writs of certiorari were properly dismissed.

Affirm the judgment of the Circuit Court.

^* ORIGINAL NOTE. — Unless in cases where a dismission takes place without a fair and full examination of the facts stated in it.(Sed qu. as to this qualification, see the cases cited in second head note. ED.)