80 Tenn. 89 | Tenn. | 1883
delivered the opinion of the court.
McGhee brought an action of unlawful detainer against Grady, which was tried and judgment rendered in favor of the plaintiff by .the justice on January 9, 1880. On
The papers having been brought up and filed under the certiorari awarded, the plaintiff moved to dismiss the petition because it did not show that it was the first application fot a certiorari, and because the writ was not obtained within the time required by law. Other causes were assigned for the motion not now insisted on. The motion was overruled by the circuit court, the cause tried by a jury, and verdict and judg
The Keferees have reported that the judgment should he reversed, and the petition for the certiorari dismissed upon the first ground assumed- in the motion, that the petition did not show that it was the first application for the writ. They so report because, they say, they, ■construe the petition,, “ from the character of the facts stated therein and the circumstances surrounding the case,” as a substitute for an appeal, and the statute •expressly requires such a petition to state that it is •the first application for the writ: Code, sec. 3128.
The prayer of the petition certainly admits of this •construction, and the application, which seems to have been, to the judge out of court, and the fiat granted •are in the usual form and mode adopted in such cases. But the substance of the petitiou is that an appeal was prayed and granted, and perfected by the taking and filing of the oath prescribed in lieu of a prosecuting bond, and that the justice, although he had promised to bring up the papers, had failed and refused so to do unless required by the circuit judge. The appeal was in fact, perfected,, and the right to have the papers filed in court was clear: Lynn v. Tellico Manufacturing Company, 8 Lea, 29. The writ of certiorari is the proper writ to compel a cierk, and for this purpose a justice is his own clerk, to file the record in an appellate court, when the law makes it the duty of that official to see that it is filed: Code, secs. 3124, 3142; Pierce v. Pierce, 4 Sneed, 77, 81. ‘The appellate court may issue any writ or process
The plaintiff below proved that he bought from J. P. T. McCroskey a large tract of land, and held it under a deed from him with full covenants of warranty. The boundaries of the tract include the land in dispute — consisting of four acres — cleared and enclosed, on which was a double log house, stable, well and well house, fruit trees, grape vines, etc. He knew at the time he bought from McCroskey that the defendant lived on the four acres. The plaintiff testified, and introduced evidence tending to show that after his purchase, he went to the defendant’s house, and the
Under these circumstances, the defendant introduced a witness who proved that he was the attesting witness to a written agreement between J. P. T. Mc-Croskey and the delendant Grady, which he saw them sign or acknowledge. This instrument was then read to the jury, over the objection of the plaintiff j on the ground that the title to the land could not be en-quired into in an action of forcible entry and detainer. The contract was that Grady was to clear and improve the land as the other testimony showed had been done, in consideration whereof McCroskey agreed that Grady should hold said house and lot during the natural life of both the parties, the possession to terminate at the death of either party. The admission of the instrument as evidence over the objection of the plaintiff is now assigned as error.
It is provided by statute that in actions of forcible or unlawful entry or detainer, “the estate or merits of the title shall not be enquired into”: Code, sec.
The bill of exceptions contains no charge of the judge. There is copied into the transcript immediately before the bill of exceptions a single sentence commencing thus: “Among other things not excepted to, the court charged the jury in this cause, that,” etc. Error is assigned on this clause. But not being embodied in the bill of exceptions, it cannot be noticed: Bass v. State, 6 Baxt. 580; Hardwick v. State, 6 Lea, 229.
The report of the Referees will be set aside, and the judgment of the circuit court affirmed.