Baxter v. Ervin

1 Shan. Cas. 113 | Tenn. | 1858

Wright, J.,

delivered tbe opinion of tbe Court:

We are of opinion tbat tbe Circuit Judge did not err in this case, because we tbink tbe writ issued to Dickson County, against Theodore Baxter, must be regarded as a counterpart of that issued to Robertson, against Robert Baxter and James T. Connel, and being of opinion, as we are, from tbe statement in tbe petition, tbat tbe plaintiff in error was in fact served with process, it was gross neglect in him, not to have appeared at tbe proper time, and make defence to tbe suit. ‘

But if this were not so, and be in fact were not served, tbe sheriff having made return, tbat be was, it has become a record, and cannot be averred against, and if false, tbe remedy of tbe plaintiff in error is by action on tbe case, for a false return, or by bill in equity to enjoin tbe judgment. McBee vs. The State, Meigs. Rep. 122 ; Ridgwayvs. The Bank of Tenn. 11 Hum. 223. That a writ of error cor am nobis is not the proper remedy, is settled in this latter pase. ⁽¹⁾ But still, notwithstanding this is so, the case is here as to Theodore Baxter, upon the original judgment, and we are called upon to revise it. And we are of opinion that as to him, it is erroneous. He is sued and sought to be made liable as the endorser of a promissory note, but the declaration contains no averment of demand of payment on the makers, or that any notice of the dishonor of the note was given to the plaintiff in error, as endorser, nor is any excuse assigned for not having doneso. In Knott et als. v. Hicks, 2 Hum. 162, it was held that such an omission was fatal, and not cured by verdict. And in a case at the present term we held the omission fatal after judgment by default, and that such a course of pleading was not sanctioned by any thing in the Code. ⁽²⁾ We say this is a promissory note, because' the declaration so states it, and in disposing of the writ of error we can only look to the record by oyer or bill of exceptions, and we cannot now consider whether it in truth be a promissory note, or such a writing as, under the rules of the Law Merchant, the liability of an endorse can be made to arise upon it. The original judgment of the Circuit Court, as to the plaintiff in error, must therefore be reversed, and the cause remanded for a new trial, with leave to amend the declaration.

This necessarily reverses the judgment upon {he dismissal of the petition.

Judgment reversed.

(1) .) McCully v. Malcolm, 9 Humph. 187, 193: Love v. Smith, 4 Yerg. 117, 126.

In. the proceeding under the writ of error Coram Nolis, nothing can he assigned as error which contradicts the ord of the original suit. Crawford v. Williams, 1 Swan, 341, 346. See further, as to the writ of error Coram Nobis, Tibbs v. Anderson. Infra.

(2) .) Harlan v. Dew, 3 Head, 505; Tumley v. Clarks v. & Memphis R. R. Co., 2 Cold. 327.