60 Tenn. 342 | Tenn. | 1872
delivered the opinion of the Court.
This is a petition for a writ of error coram nobis, which was dismissed, on motion, by the Circuit Judge, and an appeal to this Court.
The judgment sought to be set aside was rendered in 1864, by the Circuit Court of Davidson County, and is for the sum of upwards of $8,000. The petition was sworn to by Elliott on the 31st day of December, 1867, this being the last day on which it could have been filed, as it is required to be filed within one year, and the Statute of Limitations commenced to run on the 1st day of January, 1867. On the same day the petition was presented to John Hugh Smith, Judge of the Criminal Court of Davidson County, who gave a fiat directing “the petition to be filed upon petitioner entering into bond sufficient to pay costs, etc.” In January, 1868, Mr. Hamilton
It is now insisted that this motion came too late; that the petition in a case of this kind, like a petition for certiorari seeking a new trial in a case, serves only to bring the case into Court, and, having served this purpose, can no more be looked to; and that, if the petition, on its face, shows insufficient grounds for granting the writ, then a motion must be made at the first term of the Court, or it is too late, and the case stands for trial on its merits, as presented in the more formal assignment of errors made by petitioner.
This is a total misapprehension of the nature of this proceeding. It is not to bring up the former case, but a new suit commenced to reverse a former judgment, and the grounds on which the reversal is asked must be stated in the petition, and these grounds must be the basis of the issue to be presented in a more formal assignment of errors, to be
We take it that this suit was not commenced until the security was given on the 2nd day of Janur ary, 1868. The mere granting of the fiat for the issuance of the writ is not its commencement, nor the issuance of the writ, only an authority for doing so, on compliance with the terms of the order. The writ, in fact, by our practice, never issues, but is presumed to issue in accordance with the fiat, on
The result is, the judgment of the Circuit Court is affirmed.