Elms v. State

• Decision Date: 31 December 1849
• Citation: 29 Tenn. 128
• Parties: ELMS v. THE STATE.
• Court: Tennessee Supreme Court

29 Tenn. 128

ELMS

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1849.

S. Turney, for the plaintiff in error; Attorney-General, for the State.

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

This is a scire facias upon a forfeited recognizance, against the plaintiff in error, as bail for the appearance of one John H. Officer, who stood indicted in the circuit court of Overton county upon a charge of counterfeiting, etc.

In order to present properly, the principal points urged in argument here, by the counsel for the plaintiff in error, it is necessary to state, that the June term, 1848, of the circuit court of Overton county, which county is embraced in the fourth judicial circuit, was holden by the Hon. Andrew J. Marchbanks, judge of the thirteenth judicial circuit, by interchange with his honor, W. B. Campbell, judge of said fourth circuit.

The record shows, that during said June Term, Judge Marchbanks appointed a special term of said court for said county, pursuant to the provisions of the act of 1827, ch. 79, to be held on the third Monday of August following. The record further shows, that, during said June term, the case of the State against said John H. Officer was continued on the affidavit of the defendant, until the special term appointed as aforesaid. And thereupon, said defendant, with the plaintiff in error as his bail, entered into recognizance in the sum of $1,000 each, for the appearance of said defendant on the first Tuesday after the third Monday of August next following, being the time appointed for said special term. It appears that the judge failed to hold said special term, and the clerk, in pursuance to the act of 1835, ch. 5, sec. 5, opened and adjourned the court from day to day, until the fourth day of the term, when, the judge not attending, he adjourned the court until court in course. It does not appear that the defendant, Officer, appeared at said special term, or that there was any action taken upon his recognizance by the clerk.

At the following October regular term of said court, the defendant, Officer, having been called, failed to appear, and the plaintiff in error, his bail having, in like manner, been called to appear, and bring with him into court the body of said defendant, failed so to do, a judgment nisi was thereupon entered up against the plaintiff in error for the sum of $1,000, according to the tenor of said recognizance, upon which the present scire facias is founded.

The plaintiff in error put in several pleas to the scire facias, to all of which, except the last, which was the plea of nul tiel record, the attorney-general demurred. Upon the latter plea issue was joined, and the issue was found by the court in favor of the State. The demurrer to all the other pleas was sustained, and final judgment rendered on the scire facias, against the present plaintiff in error, for said sum of $1,000, from which he prayed and obtained an appeal in error to this court.

The several pleas disposed of by the demurrer, are entirely defective both in form and substance, and need not be noticed, but all the questions intended to be raised by the pleas, arise upon the facts set forth in the scire facias, and are reached by the demurrer to said pleas, filed by the attorney-general.

The first ground insisted upon by the counsel for the plaintiff in error is, that the recognizance entered into for the appearance of the defendant, Officer, at the special term appointed as before stated, was invalid, upon the ground that the judge presiding had no power or authority by law to make such appointment, or, in other words, that the power to appoint a special term of the circuit court, is restricted to the judge of that particular circuit within which is included the court requiring the appointment of a special term.

We entertain a contrary opinion upon this point. The judges of the circuit courts, it is true, are by law required to be appointed, each for a particular circuit, and to reside and hold the courts therein; nevertheless, by the same statute, the judges so appointed are declared to be “judges of the State.” They may interchange with each other, whenever the incompetency of the judge of the...