Beck v. Knabb

• Decision Date: 31 May 1799
• Parties: BECK v. KNABB.
• Court: Tennessee Circuit Court

1 Tenn. 55

BECK

v.KNABB.

Superior Court of Law and Equity of Tennessee.

May, 1799.

Certiorari.--On the fourth day of the term a rule was entered to show cause why the certiorari should be dismissed.

Upon examination of the proceedings, it appeared the certiorari had been returned the term before the last; but no supersedeas was returned. An appearance had not been entered; nor did it appear that any notice had been served.

At this term it was moved that the defendant be permitted to take exceptions, as not being such a case as came under the general rule, that the defendant must except the first term.

Per Curiam.

It should appear that the defendant was apprised of the removal of the cause to this court, which does not, either from appearance or otherwise,--it is not too late to take the exception.

The plaintiff then offered his own affidavit to disprove the statement made in the petition.

Whiteside and Emmerson, for the defendant, opposed the receiving this affidavit. This is a point of practice which has not been settled in this State. It was recollected, in the course of practice, that it had been done in one instance, but refused in others. It is true the practice in North Carolina is different. The prosperity of that practice even there was doubted; but if good in that State, it did not follow that our practice must be the same. It is well known that there are scarcely two States in which the practice is the same. Practice must depend very much upon the local institutions of each State. The time employed in hearing and investigating cross-affidavits will be a burden to our courts of justice. On the other hand, it was argued by the counsel for the plaintiff that the law here was the same as in North Carolina, where the practice had been settled for many years to receive and hear cross-affidavits, and either dismiss or continue certioraris, as the case might appear to the Court. 1 Hayw. 280, 366.

Overton, J.

This is a point of practice that deserves much consideration, more perhaps than can now be afforded, but as it strikes me, the practice of North Oarolina, as stated in Hayw. 280, 346, is extremely doubtful, as to its propriety upon the English authorities. But waiving this for the present, let us consider how the practice ought to stand here; for surely we are not implicitly bound by what we find in their books.^a1 By the English law a certiorari, as a remedial writ, could not ordinarily be granted after trial, unless on points of law; then not to courts to which a writ of error would lie. Before the formation of our Constitution, it was usual to grant a certiorari, after verdict and judgement below, in civil cases. The practice was well settled in this respect. It appears to have been so settled in North Carolina. In this, the two States agree, but differ from English law, in issuing the certiorari, as primary process, after a determination in the court below. The practice of the State of North Carolina in all subsequent steps, after issuing the certiorari, seems not conformable to the English practice. No reason can be seen, why that practice should have been departed from in the progress of the cause, but being a point of practice, the courts of each State will and ought to adopt such a course, as they may conceive applicable to their own peculiar situation. By the practice in England, certioraris were never granted to the inferior courts of record, except before trial below. The inquiry then is, how did they conduct the proceedings after issuing the writ? Whether it were necessary to lay ground, so as to authorize a court or a judge to issue a writ, is not now material to inquire. Our Constitution expressly says that ground must be laid by affidavit. It however seems deducible from the English authorities that it is necessary to lay some ground in all cases, except at the instance of the crown. Upon return of the writ and proceedings of the court below, in ordinary cases, they were filed immediately; nor upon general principles is it recollected that affidavits on either side have ever been received there. If granted for the purpose of having a trial in the Superior Court the cause proceeded of course; this being the practice in England, is it more reasonable to adhere to it than to adopt the practice we find laid down in Haywood, 280, 366. The practice under the common law seems much more conformable to the spirit of our government. The Constitution, art. 5, sec. 6, provides, that the judges of the superior courts shall have power in all civil cases to issue writs of certiorari to remove any cause, or a transcript thereof, from any inferior court of record into the superior on sufficient cause, supported by oath or affirmation. This clause certainly contemplated some new provision. By the well established practice in England, a civil cause could be removed from an inferior court of record before trial. This clause does not state whether the cause shall be removable before or after trial below; if the clause is construed as merely declaratory of the English practice, the argument is at an end; the certiorari must be dismissed as having improperly issued, but it is said, and truly, that it was the practice to issue certioraris to remove causes, after determination...