1 Tenn. 191 | Tenn. Sup. Ct. | 1805
Lead Opinion
Petition for a Certiorari and Supersedeas. — Notice had been given by the defendant that a certiorari would be moved for. The application in the case alluded to was to read the *192 affidavit of the opposite party. The introduction of the affidavits of others was not then before the Court, and consequently is now open for investigation.
The counsel for the plaintiff relied upon the cases in Haywood, 280, 366. An application for a certiorari is in effect an application for a new trial. In such applications cross-affidavits are not received, and the reason is obvious; there, all the circumstances and evidence are within the knowledge of the Court. Not so in an application for a certiorari. The evidence adduced, and the circumstances attending the trial below, the Court cannot be presumed to know. It is therefore proper that they should hear cross-affidavits, otherwise they could not have as full a view of the case as they would in the ordinary case of an application for a new trial, which they ought to have so as to enable them to determine whether a new trial ought to be granted or not. The petition only exhibits one side of the question.
WHITESIDE, e contra. — Let the case be assimilated to an application for a new trial, how does it stand? Suppose a new trial moved for upon an affidavit or affidavits as is frequently the case, did the courts ever permit cross-affidavits to be read? No instance of the kind can be produced. The reason is plain, if courts can hear cross-affidavits they must in justice hear affidavits to rebut them, c., and thus induce a necessity for the Court to judge of the credibility of different persons; a principle which all our laws seem carefully to guard against. Besides, it would produce great confusion and perplexity in the practice.
Addendum
This is a motion for a certiorari, upon the ground disclosed in the petition. The case seems susceptible of the following points of view: —
1st. How is that class of cases, called motions, conducted by the English practice, in their different courts? Whether supported by affidavits or not; and, if they are, whether cross-affidavits are receivable? *193
2d. Does an application for a certiorari differ from other motions; and what is the practice upon certiorari in England, considered as remedial and not auxiliary process?
3d. A comparison of this case with that of Beck v. Knab.
4th. Is the practice as laid down in Haywood, respecting the introduction of cross-affidavits, founded in the principles of the practice in England, or in that of our own government? As to the first point, it seems evident as a general rule that affidavits are necessary to lay the ground of motions, but that cross-affidavits are not generally received in opposition, for two reasons: first, it would compel the Court, whose province it is to judge of law and not of contested facts, to determine upon the credibility of persons; and, secondly, it would be harassing a court of justice with lengthy investigations respecting the propriety of merely preparatory steps.1 These motions may be grounded on incorrect statements of facts, but that does not affect in the smallest degree a determination upon the merits. The fallacy of these statements may sometimes produce delay, but that is all. However, the law does not presume a man will swear falsely. It is better, says the law, to bear with a particular mischief than a general inconvenience. In considering the second ground, it appears, agreeably to the practice in England, that the crown is entitled to a certiorari
without laying a ground by affidavit or otherwise; but not so of individuals. When, however, an individual states his case, it is discretionary with the Court to grant or refuse the writ; but when it has been granted and returned it will be filed immediately, of course.
In the single case alluded to, upon return of the writ, the Court will not permit it to be filed until they see whether there are substantial objections to it or not; which may be supported by affidavits, being the only case known of in the practice in *194 England. The reason of this exception, given in some of the books, is, that the adjoining lands might be inundated, and the health of the neighboring people destroyed, if the proceedings of the commissioners were superseded for any length of time. The public, beside individual interest, seems greatly concerned in this case.3
In all other cases the writ is filed of course, and no other objection to the propriety of issuing is recollected, except such as appear from the face of the paper. It is the established practice here to admit objections to the propriety of obtaining the writ daring the return term but not afterwards when issued by a single judge out of court for defects appearing on the face of the petition. This is agreeable to the practice in England, as laid down in 1 Burr. 48; 4 Burr. 2459, 2522. The king is entitled to acertiorari of course, being authorized to prosecute in what court he pleases.
As to the third ground, it appears clearly to me that the principle upon which the case of Beck v. Knab was decided is the same with this. The principle was, whether cross-affidavits generally should be received, though, the particular case before the Court was whether the affidavit of the opposite party should be received. As far as the authority of the reasoning in that case goes it decides this.
The next inquiry is whether the practice stated in Haywood, with respect to the reception of cross-affidavits, is agreeable to the practice in England. It seems to me that it is not, except, in the case of commissioners of sewers, where the public interest is directly involved. The reasons and authorities have been stated before. Nor does this practice seem to accord with the essential principles of our government, whatever it might have been in England and in North Carolina. The convention certainly conceived this writ deserved particular care in its preservation, as being of consequence to the public happiness. *195
In England it had been considered most generally as a discretionary writ, in contradistinction to one of common right. The very circumstance of inserting a provision in the Constitution almost carries conviction to my mind that the nature of this writ is altered so far as to make it a writ of right and not of discretion. The Constitution however contemplates the laying ground by affidavit for the writ; so far it is discretionary; but when sufficient matter is disclosed in the affidavit to authorize the writ, it is no longer discretionary. Even in England it has sometimes been considered as of common right. Strange, 609. Surely, it ought here, being in many points of view an important part of our Constitution. An appeal by our law is considered as matter of common right, and highly necessary to the preservation of our lives, liberties, and properties. A man may in various ways lose the benefit of an appeal without any fault of his own. This writ, then, is the only common remedy. In appeals, the party is entitled to a jury trial. The Constitution says that shall remain inviolate. Suppose a person deprived of an appeal without any fault in himself: he files a petition supported by affidavit; agreeably to the Constitution, a certiorari issues; affidavits and cross-affidavits and affidavits to rebut, are received. Amidst this contrariety of testimony the Court judges of which side the truth lies. The genius of the laws of England and of our own country seems generally adverse to the exercise of such a power. It is a maxim that questions of law belong to the Court and those of fact to the jury: and so careful does the law appear to be of this distinction, that, in mere preparatory steps, it will not ordinarily admit of this collision. When matters of common right are concerned, such as that of having a re-examination of a man's cause by a jury of his country, the spirit of our Constitution and laws seem clearly to oppose the exercise of such a power by the Court. In many cases it might happen, that, for want of a sufficient knowledge of the characters of those making affidavits, a court might dismiss this writ, and the party be deprived of a jury trial altogether, without any *196 fault on his part. Under these impressions it seems to me that cross-affidavits cannot be received in this case.
Addendum
thought the case different from that of Beck v. Knab. There is certainly much more reason that we should hear the affidavits of indifferent persons than the opposite party, who would of course be interested. Let the affidavit be read.
Addendum
was still of the same opinion he entertained in the case of Beck v. Knab. The ground which has been taken by the plaintiff's counsel, respecting a new trial, seems correct. This, in fact, is an application for a new trial. It is well known that in applications of this kind courts always exercise a discretion; and, if they do, how can it be done fairly and with impartiality unless we hear affidavits? If we take the ex parte statement in the petition, it will only be hearing one side. In common cases of applications for new trials in the same court, we have a view of the state of the case on both sides, this, at once, will account why cross affidavits are not heard. The Court have a knowledge of the case without them. Here we cannot, unless we hear the affidavits; and to a rightful determination whether a new trial shall be granted or not, or, in other words, whether we allow or reject the application, it seems necessary that these affidavits should be read.1
