74 Tenn. 198 | Tenn. | 1880
delivered the opinion of the court.
Brewer was tried and convicted under an indictment for rape, in the circuit court of Wayne county, and appealed in error to this court at its December term, 1879. The transcript of the record, as filed, showed a fatal defect, and the judgment was reversed for this defect, and the prisoner remanded for a new trial. At the January term, 1880, of the circuit court of Wayne county, the regular judge was not present, and a special judge was elected by the bar, under the provisions of the Revised Statutes, sec. 3930a. On the 2d day of that term, the prisoner appeared at the bar in custody of the sheriff, the order of this court reversing the judgment and remanding the cause having been entered on the minutes, and, by consent of the prisoner and district attorney-general,, the cause was continued until the next term; whereupon, the prisoner, and J. J. Bromley and Archy Robertson his sureties, entered into a recognizance, by which they jointly and severally bound themselves to the State of Tennessee in the sum of $500, to be void on condition that said W. A. Brewer made his personal appearance before the judge of the said circuit court on the third Monday in May, 1880, to answer the State upon an indictment for rape, and not depart without leave of the court. After this, it was discovered that the defect in the transcript of the rec
At the May term, 1880, of the circuit court of Wayne county, the regular judge being again absent, the clerk held an election under the Revised Code, sec. 3S)30a, and a special judge was elected and qualified according to law, and entered upon the discharge of the duties of his office. On the same day, the special judge adjourned the civil and criminal business of the court to the 31st of May, 1880, at which time the parties, witnesses and all others interested were required- to attend. At that time" the regular judge seemed to have been in attendance, and on the 3d of June, 1880, the defendant not appearing, was called out, and a judgment nisi entered up against him, for his default, for the penalty of .his recognizance, and scire facias ordered, returnable to the next term. On the same day, a separate judgment nisi was rendered against Bromley and Robertson, the -sureties, and a scire facias ordered for them, returnable to the next term. The scire facias issued against the defendant was returned with the endorsement that he was not to be found in the county. The scire facias for the sureties was duly executed on them. At the return term, the sureties made default, and a judgment final was taken against them.
The defendant Brewer, and Bromley -one of his sureties, join in a petition for a writ of supersedeas,
A writ of error does not lie in this State, either •in a civil or criminal case, except where the judgment is final: Code, secs. 3176, 5246. There is no final judgment against Brewer upon the recognizance, and the writ of error asked for by him must be refused. There is a final judgment against Bromley, and he is entitled to a writ of error as of right. He can, however, only have a supersedeas by order of this court, or one of its judges, when satisfied, from an inspection of the record, that there is error: Code, sec. 3178. Under the circumstances of this case, the record has received the consideration of the entire court.
No defense having been made below, the only errors which can be relied on here are, probably, a want of jurisdiction in the circuit court to take the recognizance or render the judgment, or a fatal defect in the scire facias: State v. Patterson, 7 Baxt., 246. Any mere irregularity in the proceedings which could not have been taken advantage of by some mode of pleading, or by way of excuse to set aside a default, or obtain a continuance, would now be of no avail.
The first error relied on is, that the circuit court had no áuíhority to render the judgment, the case being in this court. At the time the recognizance wa§ taken, there was, in point of fact, no case in this court, the judgment of conviction - having been reversed, and the cause actually remanded for a new trial. That court had the case before it, and the prisoner under its control. It is only by a theoretical fiction
The subsequent setting aside of the judgment of reversal, restored to this court the jurisdiction of the original case and deprived the circuit court of any authority to retry the defendant, without further order. But it did not interfere with any order it may have-made pending its actual control of the prisoner, or any obligation taken for his. appearance. Upon the re
It is next argued that the special judge elected at the May term, had no power to adjourn the court, over to a day not appointed by law to hold the court. The statute expressly confers upon a special judge “all the power and authority” of the regular judge:Code, sec. 3925. Under the Code, sec. 4222, it is. every day’s practice for a judge to adjourn his court in his sound discretion, or to resume business after a failure to hold court for any cause during a reasonable interval of time. And .if it be conceded that a formal order of adjournment for a period of two weeks-was ultra vires, the court, if actually held at the time designated, would be .a court de facto, and its proceedings valid: Venable v. Curd, 2 Head, 582. Even.
It is also assigned as error that separate judgments were rendered against the principal and sureties. Upon a recognizance taken, and judgments thereon rendered before the adoption of the Code, a demurrer was sustained to a scire facias on this ground, the court, or rather the learned judge who delivers the opinion, resting the decision upon the want of authority in the court to render several judgments upon a joint and several recognizance: Scott v. State, 1 Head, 433. But the Code now provides that persons jointly and severally liable by judgment, decree or statute, may all or any part of them be sued in the same action: Code, sec. 2787; Gregory v. Chadwell, 3 Cold., 390. The distinction between statutory and common law bonds and recognizances is also abolished, and no defense to any action or scire facias prosecuted to enforce either is available, unless it would be a legal and valid defense to a suit at common law upon the same: Code,
The writ of error asked for by defendant is refused. The surety is entitled to a writ of error but not to a supersedeas.