Studdurt v. Fowlkes

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 537
• Parties: STUDDURT v. FOWLKES.
• Court: Tennessee Supreme Court

32 Tenn. 537

STUDDURT

v.FOWLKES.

Supreme Court of Tennessee.

December Term, 1852.

Upon the facts stated in the opinion, the circuit court of Hickman county, at its October term, 1852, Walker, judge, presiding, rendered judgment for the defendant; from which the plaintiff appealed in error.

Flippin, for plaintiff in error; M. S. Frierson, for defendant in error.

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

A judgment was rendered before a justice of the peace, in favor of Fowlkes against Studdurt, for $178.65, and execution issued thereon. The defendant brought his petition for certiorari and supersedeas, which was granted by the judge in vacation. At the return of the writs in the circuit court of Hickman, a motion was made to dismiss the said petition and writs. The petition states sufficient ground for the writs. It states that the debtor had caused a solvent and proper person to offer himself before the justice, as stayor; that “he was accepted by the justice” in the time allowed the defendant to stay the judgment; that on application of the plaintiff, and without notice to defendant, the justice issued an execution on the judgment, notwithstanding the same had been stayed.

The affidavit of the justice was received to disprove the petition; and it denies, in effect, the truth of said statements. The petition was thereon dismissed, and the defendant has appealed in error to this court. The question is, Was it proper to admit and consider the affidavit of the justice, or other extrinsic evidence, on a motion to dismiss the said petition? We are of opinion that it was not.

The motion to dismiss involves the question whether the matters stated in the petition shall be tried upon their merits, or not. It is in the nature of a demurrer to other pleadings; and, admitting the facts stated in the petition to be true, it denies that they are sufficient in law to entitle the party to the prayer of the petition. If the motion be well taken, the petition is dismissed; if not, it is retained, and the case, or matter contained in it, is tried upon its merits.

The motion to dismiss is merely preliminary, and its object is to cut off and preclude any enquiry into the merits of the case. If the facts stated in the petition prove to be untrue at the trial, the party will take no benefit by his false petition, and may be criminally liable for his statements. There is good reason, therefore, for taking it as true, in the preliminary motion to...