74 Tenn. 514 | Tenn. | 1880
delivered the opinion of the court.
On the 4th of May, 1876, Milsom & Coe sued J. B. Z. Jackson in the circuit court on a note, and
If the matter of a petition for writ of error córam nobis be insufficient, or from its face it appears to have been granted contrary to law, there is no reason why advantage may not be taken of the defect by motion to dismiss: Elliott v. McNairy, 1 Baxt., 346; Gallena v. Sudheimer, 9 Baxt., 189. Á party seeking to avail himself of this remedy, even if he be able to assign an error of fact which would have prevented the rendition of the judgment if the fact had appeared at the trial, must show that it was owing to no negligence on his part that. the fact was not made to appear at the trial; for, if by the exercise of reasonable care and diligence he could have availed himself of the fact, the remedy is denied him: Code, sec. 3116; Migham v. Brewer, 4 Sneed, 435; Dunnivant v. Miller, 1 Baxt., 227; Mahalovitch v. Vaughn, 1 Baxt., 325.
The petition concedes that the summons in the case was served on the petitioner by the sheriff, and that
We concur with the circuit judge in his conclusion that the “ mistake,” by which the petitioner was prevented from making defense, was not “ without fault on his part.” There was gross negligence in not looking into the case, from which we cannot relieve him.
Affirm the judgment.