C. D. Venable & Co. v. Curd

• Decision Date: 30 April 1859
• Citation: 39 Tenn. 582
• Court: Tennessee Supreme Court
• Parties: C. D. VENABLE & CO. v. CURD AND WHITE.

39 Tenn. 582

C. D. VENABLE & CO.

v.CURD AND WHITE.

Supreme Court of Tennessee.

April Term, 1859.

FROM HENRY.

A writ of error was prosecuted to reverse the judgment rendered at the May term, 1858, Fitzgerald, J., presiding.J. P. Dunlap, for the plaintiffs in error; Dunlap & Porter, and B. F. Lamb for the defendants in error.

McAmpbell, on the same side, said:

It is insisted under the law as it existed, that the court had no jurisdiction.

If it needed authority to sustain this position, the case of Gregg v. Cooke, Peck, 82, directly decides the principle. In this case the court was opened at the time required by law, but rendered the judgment at a day when, by law, the judge was required to be at another court. This is a much stronger case than the one at bar. In the one at bar, the judge had no authority to open and hold the court, by virtue of any law.

The same principle is announced in the case of Brown v. Newby, 6 Yerg. 395.

Wright, J., delivered the opinion of the court.

This is a writ of error prosecuted to this court by the plaintiffs in error, in which they seek to reverse a judgment rendered against them in the Circuit Court of Henry county, on the 25th of May, 1858.

The ground upon which the reversal is asked, arises upon the following facts:

The times of holding the Circuit Courts for Henry county were changed, from the third to the fourth Mondays of January, May and September, by an act of the Legislature, passed the 25th of January, 1858, which act took effect from and after its passage.

On the 1st day of March afterwards, at the same session of the Legislature, the act of the 25th of January, 1858, fixing the time of holding the Circuit Courts for said county, was repealed, and the time changed from the fourth to the third Mondays of January, May and September; and which act, also, took effect from its passage.

No alternation was made in the time prescribed by the act of March 1, 1858, for holding the Circuit Courts of Henry county, either by the act passed March the 20th, 1858, or by the Code. So that the proper time to hold said court in May, was the third, instead of the fourth Monday.

The Circuit Judge not being able to keep pace with these sudden changes in the legislation of the State, and not being aware of the existence of the act of the 1st of March, 1858; but supposing, as he well might, and as no doubt did the other officers and suitors of the court, that the proper time to hold it, by law, was the fourth Monday in May, proceeded to open and hold said court at that time, as required by the act of the 25th of January, 1858, and during that term rendered the judgment aforesaid.

The act of the 25th of January, 1858, was printed in the general and public laws of that session, while the act of the 1st March, only appeared among the private acts.

It is true, that in the act of the 20th of March, printed among the public laws, the sessions of the Circuit Courts of said county were permanently fixed upon the third Mondays of January, May and September; but, in the same act, it was expressly provided, that no alteration made by that act in the time then prescribed by law for holding said court, should take effect until after the first term of the court after the expiration of forty days from the end of that session of the General Assembly.

It will thus be seen that this course of legislation was well calculated to mislead and did mislead the officers suitors of the court as to the true time of holding it, and that scarcely any amount of vigilance could guard against it.

The plaintiffs in error, after the adjournment of the term, having discovered that the court had been holden at the wrong time, have obtained a writ of error, and now allege that said judgment is erroneous and void.

We do not think so. The...