60 Tenn. 325 | Tenn. | 1872
delivered tlie opiniou of the Court.
Mahalovitch recovered a judgment against the defendants in December, 1869, before a Justice of the Peace of Davidson County, for the sum of $167.00 and costs of suit. The defendants prayed an appeal to the Circuit Court, -which was granted, and bond given. At the following term of said Court, in January, 1870, the plaintiff appeared and had said judgment affirmed against the defendants, under Section 3,144 of the Code. At the next term of the Court the defendants filed a petition for a writ of error cor am nobis, asking that the judgment by default be superceded, and the case reinstated on 'the docket, in order that it might be tried on the merits. The plaintiff thereupon moved to dismiss the writ of error coram nobis, which motion was overruled, and the case reinstated on the docket.
The cause was afterwards, by consent of the parties, transferred to the Law Court of Nashville, and a trial had before a jury, which resulted in a verdict for the defendants. The plaintiff moved for a new trial, which was overruled. The case is before us by writ of error, and consequently the whole proceedings ,are open to investigation.
The principal ground upon which the plaintiff asks a reversal is, that the Circuit Judge erred in refusing to dismiss the writ of error coram nobis. In order to determine this point, it is necessary to examine the petition, to see whether or not it shows errors of
The petition admits that the plaintiff recovered- a judgment against the defendants before a Justice of the Peace, and that an appeal was prayed and granted to the Circuit Court. It also shows that the defendants had employed Mr. Childress (an attorney) to prosecute the suit for them; it further shows that B. "Vaughn, one of the defendants, and their attorney, went and searched for the papers in the Court, and that he learned from the Clerk of the Court that the papers were in Court, but they had been sent in so late in the term that he would not put the case on the docket that term of the Court, and upon this information, the attorney told them that it was not necessary to pay any more attention to the matter for the present. And the attorney himself went to Arkansas, leaving no one to represent him in the case. The petition also states that afterwards the Clerk, or some one of his deputies, placed said case on the docket, atid the judgment was affirmed, without the knowledge of themselves or their attorney.
To sustain a petition for a writ of error coram nobis, it is necessary for the defendants to show error of fact occurring in the proceedings, of which thejr had no notice, or which they were prevented by disability from showing or correcting, or in which they were prevented from making defence by surprise, accident, mistake, or fraud, without fault on their part.
The only error of facts relied on in the petition is, that the case was put on the docket and affirmed without the knowledge of the defendants or their attorney, and therefore that they had no notice of the proceedings, and were taken by surprise. To maintain this error of fact, it was necessary for the defendants to show that the alleged error occurred without any fault or negligence on their part. This they have failed to do, but,J on the contrary, the petition shows that the defendants knew that the papers had been returned to Court, and that they relied on the statement of the Clerk ;as to the case being placed on the docket. Ve are of the opinion that they were guilty of great negligence in not having the case put on the docket, and in not prosecuting their appeal more diligently, instead of relying on the statement of the Clerk that it would not be