52 Tenn. 385 | Tenn. | 1871
delivered the opinion of the Court.
The Court is of opinion that there is error in the judgment of the Circuit Court dismissing the petition in this case for the writs of certiorari and supersedeas. The petitioner was the surety of one William R. Watkins upon a promissory note for $200, of date the 1st -January, 1861, due twelve months after that date, for the hire of a negro slave, and payable to Markham L. Williams, by whom it was assigned to the defendant in error on the — day of January, 1867. A judgment was rendered on this note on the 4th of April, 1868, against the petitioner and the other parties to the note by a Justice of the Peace of the county of Shelby, for $275.01 and costs. Upon this judgment -an execution was issued on the 13th of April, 1868, which was returned by the officer “for an alias,” on the 11th May, 1868; and on that day an alias -execution was issued, which was returned on the 22d • of May, 1868, “stayed by writs of certiorari and super-
It remains to be considered whether the petition shows merits upon its face, and whether the petitioner has shown good reasons for not appealing. For howsoever meritorious may be the causes of complainant against the judgment, if the party complaining has not shown good reasons for his failure to appeal, he is not entitled to the writ. And this is a matter addressed to the sound discretion of the Court, to be considered and adjudged in the light of surrounding circumstances as developed in the petition. In the statement of the facts upon which the petitioner relies, only reasonable certainty is required. A defence prima faeie good is all that is necessary: Dick & Co. v. Powell, 2 Swan, 632. In the case of McCormack v. Miller, this Court said, that “in view of the extension of the jurisdiction of Justices of the Peace, by which a new trial by jury has become a matter of greater importance to the rights and interests of parties than heretofore, the Courts will rather relax than render more stringent the practice regulating the remedy by certiorari, where merits exist, and no real fault or negligence can be imputed to the party:” 2 Sneed, 46. It is contended here, in support of the judgment of the Circuit Court
In view of these principles as applied to the case in judgment, we hold that the reasons stated by the plaintiff in error for not appealing are sufficient, and that the statement in the petition, upon information and belief that upon another trial of the cause he can show that the note sued upon had been paid in whole or in part, is a statement of “good and sufficient cause,” which entitles him to the writ.
The plaintiff in error being a mere surety on the note, and in view of the long lapse of time from the execution of the note to the time of the institution of the action upon it, we would hold it to be a harsh rule that would demand of him a more specific statement as to the satisfaction of the nóte than he has furnished in the petition.
The judgment of the Circuit Court will be reversed and the cause will be remanded to the first