King v. Rentfroe
| Decision Date | 30 November 1805 |
| Citation | 1 Tenn. 191 |
| Parties | KING, CARSON, AND KING v. RENTFROE. |
| Court | Tennessee Circuit Court |
Petition for a Certiorari and Supersedeas.--Notice had been given by the defendant that a certiorari would be moved for.
Dickinson and N. M'Nairy, for the plaintiff, opposed the motion, and offered the affidavits of several persons to show that the statements in the petition were not true.
Whiteside, of counsel for the defendant, said that the case of Beck v. Knab had decided this principle, though in that case the application was to read the affidavit of the person against whom it was obtained yet the reasoning adopted by the Court went to the exclusion of affidavits altogether.
The application in the case alluded to was to read the 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 can not 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 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.
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? 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.a1 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. 2 Haw. 419, section 68. From this general rule, cases respecting the proceedings of commissioners of sewers are excepted. After the writ is returned and filed no affidavits respecting the propriety of granting it are received.d1
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 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.‡
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 during 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 a certiorari of course, being authorized to prosecute in what court he pleases. 2 Haw. 407. Certiorari to inferior courts of record must be before trial below; the object being to get a trial above.a1 It lies to all inferior jurisdictions, not of record, after judgment below.d1
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...
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Louisville & N. R. Co. v. State
...with a number of exhibits and affidavits, on the motion to dismiss. This is error: Beck v. Knab, 1 Tenn. R., 55; King v. Rentfroe, 1 Tenn. 191; Stuart v. Hall, 2 Tenn. R., 179. In the case of Studdart v. Fowlkes, 2 Swan 537, all these decisions are reviewed, and the practice settled to be, ......
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Studdurt v. Fowlkes
...courts of the state. It is material that the practice be uniform, and hence we have thought it proper to say that the cases of King v. Rentfroe, 1 Tenn. 191, and Stewart v. Hall, 2 Id. 179, stating a different rule, must be considered as overruled. In these cases, Overton, judge, dissented;......
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