Witt v. Russey

| Tenn. | Dec 15, 1849

Turley, J.

delivered the opinion of the court.

This is an attempt on the part of a defendant in an execution, to impeach the validity of the judgment, by parol proof. He says his liability arose out of an endorsement, and that the amount is greater, than that over which a justice of the peace has jurisdiction by law; the proceedings before the justice do not show in what character the liability of the defendant arose, either in the warrant or the judgment; but the justice is examined as a witness, and proves that it was as endorser. This was illegal; we have held repeatedly that if a judgment be valid upon its face, it cannot be invalidated upon certiorari and supersedeas when it comes up collaterally, by parol or other proof dehors the proceeding.

The circuit judge then erred both in not dismissing the petition and in giving relief upon the proof. If defendant had appealed, or if the certiorari had been for a new trial, and had shown a legal excuse for not appealing, the relief sought could have been had, for then there would have been a new trial, and the want of jurisdiction, could have been taken advantage of, but this certiorari and supersedeas is not for a new trial, but to quash the execution.

Judgment reversed and petition dismissed.