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Nicholas Sharp v. L. J. Treece.

taken by surprise by the testimony of the witness, John McCrary; that no such conversation took place between him and the witness as that detailed; that he did not remain in the house in private conversation with said witness, whilst the other men of the company went to the stable; that he and Richard Burk went in company to the house of Smith Seals, about dark. Both went with their horses, and helped to put them up and feed them. Affiant got up in the stable loft and handed down oats. Affiant could not foresee that said McCrary would state what he did, nothing of the kind having occurred. Since the trial, he learns he can prove the facts he alleges by Richard Burk."

The affidavit of Richard Burk was also read in support of the motion, and corroborates, in every particular, that of Sharp, stating further, that he has no recollection of being out of the company of Sharp that night at any time.

Taking these affidavits as true, which we must do on a motion for a new trial, the Court should have granted it. It is clear, from these affidavits, that the plaintiff in error was surprised by the testimony of McCrary, and that he could not have been prepared to meet it.

It appears probable, from the whole case, that if the evidence of Richard Burk had been before a jury, a different verdict would have been rendered. Therefore a new trial should have been granted. 3 Hum., 223–4. In the examination of the testimony, Alfred Fletcher, a witness, stated, in response to a question of the Court, "the defendant was acting with the rebels, and the plaintiff was a Union man."

McDowell, McGaughy & Co. v. John and Samuel Keller, Ex'rs, &c.

After the consideration of the question which disposes of the case in this Court, it is unnecessary for us to decide whether this was error. But it does become us to say that such a course by the Court, in the presence of a jury, is highly improper, and, in this instance, made reprehensible, in bringing to the consideration of the jury testimony, not only illegal in, and wholly irrelevant to, the case at bar, but political and inflammatory in its nature, which was calculated to, and doubtless did, excite and misguide the jury, impressed, as they were, with its pertinency by the question of the Court.

As a general rule, and a safe one, it is the province of a Court presiding over jury trials to try causes as presented by parties or their attorneys; to administer the law as they, by their pleadings and proof, develop it; at no time performing the office of an attorney. Judgment reversed and cause remanded.

MCDOWELL, MCGAUGHY & Co. v. JOHN and SAMUEL KELLER, Ex'rs, &c.

1. CERTIORARI. Excuse for not appealing. In a petition for certiorari, it is not a sufficient excuse for not appealing, that the defendant had the same question pending in the Circuit Court, and understood that the Justice would postpone the judgment until that was decided, the cer tiorari being applied for two years after judgment, and several month after the decision of the court case.†

† See Gillam v. Looney, ante 319.

McDowell, McGaughy & Co. v. John and Samuel Keller, Ex'rs, &c.

2. SAME. Fiat. A certiorari issued without a fiat, is subject to be dismissed. 3. SAME. Motion to dismiss. A party is not bound to move to dismiss a petition for certiorari, until the first term after he is served with process and the service within five days before the term, will leave him at liberty to make the motion at the next term. Ramsey v. Monroe, 3 Sneed, 329. 4. SAME. Same. Where appearance is the only evidence of service, the motion may be made at the term at which the party appears.

FROM GREENE.

In the Circuit Court, E. E. GILLENWATERS, J., presiding.

R. M. BARTON, presented brief of T. A. R. NELSON, for plaintiff. He cited Legate v. Ward, 5 Cold., 453; Beck v. Knabb, 1 Tenn., 55, 56; Code, 3132, as to notice; and Evans v. Evans, 4 Cold., 602, 603, as to the excuse for not appealing; Brinkley v. Burney, 5 Cold., 101, as to diligence.

A. H. Pettibone, for defendant, cited Uhles v. Nolan, 2 Cold, 529; Nicks v. Johnson, 3 Sneed, 326.

TURNEY, J., delivered the opinion of the Court.

The motion to dismiss the petition for certiorari was in time, and should have been sustained.

On the 12th day of August, 1865, Samuel Keller testator of defendants in error, sued plaintiffs in error before a Justice of the Peace, on a note for two hundred dollars. The Justice of the Peace gave judgment on the 19th of August, 1865, for plaintiffs in error fo

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McDowell, McGaughy & Co. v. John and Samuel Keller, Ex'rs, &c.

On the 4th of Sep

costs against defendants' testator. tember, 1867, testator filed a petition for certiorari alleging he would have appealed from the judgment of the Justice, but for the fact that at the same time, he had another suit pending in the Circuit Court for an amount over the jurisdiction of the Justice of the Peace, upon a note from the same parties, made to petitioner, which last mentioned suit had been decided in favor of petitioner, in the Circuit Court in December, 1866; "that petitioner understood that the said Justice was to reserve his judgment until the decision should be made and judgment rendered in the Circuit Court." This petition was addressed to R. R. Butler, J.; has no fiat indorsed upon it; and from all we see in the record, no fiat was ever granted.

We see nothing more of the petition until the 4th day of September, 1867, when the Clerk of the Circuit Court issued a writ directed to the Magistrate, commanding him to send, inclosed and certified, all the papers in the case tried by him, to the Circuit Court of Greene County, to be held on the 2d Monday of October.

The next we see of the matter, is at the February Term, 1868, of the Circuit Court, when an order is made suggesting the death of Samuel Keller, and reviving in the names of his executors; and the plaintiff in error moves the Court to dismiss the petition for certiorari. There is, in fact, no cause stated in the petition for not appealing. The vague and indefinite statement of the petitioner's understanding of the suspension of judgment, is the assignment of no reason.

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McDowell, McGaughy & Co. v. John and Samuel Keller, Ex'rs, &c.

than two years have been allowed to elapse since the rendition of the judgment, and no complaint made, and several months after the judgment in the Circuit Court passed off, the petitioner acquiescing in the judgment of the Magistrate.

To the argument that the motion to dismiss ought to have been made at the first term, we answer, the plaintiffs in error were entitled to notice, by the service of process of the filing and pendency of the petition; and as there is no positive statute fixing the time of the notice, reasoning from the general rule for the service of process to bring parties into Court, we declare the rule to be, that the notice must be served at least five days before the term to which the petition is filed. Unless the defendants to the petition had such notice, they will not be in default for failing to make the motion to dismiss at the first term. We are supported in this view by the reasoning in the case of Ramsey v. Monroe, 3 Sneed, 329. In this case, there is no evidence of notice of the filing of the petition or its pendency, until the term at which the motion is made, and then the only evidence is the motion to dismiss. So we must conclusively infer the motion was made at the first term after the plaintiffs in error knew of its existence, and at the term when there was no obligation upon them to make the motion, or in any other manner, recognize the fact that a petition had been filed, they having no legal notice.

There was in contemplation of law, no cause pending, by virtue of the petition, as there was no fiat ordering writs of certiorari; and if the plaintiff, by his

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