45 Tenn. 101 | Tenn. | 1867
delivered the opinion of the Court.
The sole question presented in this record, is, whether the Court erred in dismissing the petition of the plaintiff in error, for a certiorari.
The judgment before the Justice, was rendered on the 28th of June, 1866, and execution thereon was stayed by order of one W. J. Frey; and on the 26th of February, 1867, nearly eight' months thereafter, application was made to remove the cause, by certiorari, into the Circuit Court, for a trial de novo, on the ground that the judgment was founded upon a note which had been given for a horse to be used in the Rebel Army.
The note appears to have been given in 1861, for $120, and due and payable at twelve months from date.
Now, are these averments in the petition sufficient to justify this Court in reversing the action of the Circuit Court, in dismissing the certiorari ? We think not. It is a well established rule of practice in this State, that a certiorari, when sought to be used as a substitute for an appeal, must be applied for at the first term of the Circuit Court, after the rendition of the Justice’s judgment, unless some sufficient cause for the delay, be shown in the petition. Any other rule would render judgments very infirm and unstable, and often work great hardships upon innocent parties: Johnson & Turner vs. Deberry, 10 Hum., 439; Newman vs. Rogers, 9 Hum., 120; McMurry vs. Mitan, 2 Swan, 176.
But cases may arise in which the delay is certainly excusable, but such cases occur where there is no la-ches justly chargable to the party applying for the writ. This case does not present a state of facts free from this objection.
The record clearly shows the petitioner had full notice of the trial before the Justice, where it was his duty to have appeared, and with all proper diligence, availed
Such laches, under our practice, cannot be allowed, at least, without showing diligence in procuring the testimony, upon which the party relies in his petition, which, in this case, is not attempted to be showp.
Affirm the judgment.