Tennessee Superior Court for Law and Equity, 1805

Hamilton v. Hodgkiss

Tennessee Superior Court for Law and Equity · Decided March 6, 1805 · <italic>Per Curium.</italic>

1 Tenn. 109

Counsel

TRIMBLE, for the appellee, moved to dismiss the appeal; no reasons having been returned, under the authority of the provision contained in the 63d section of the Court Law, [fn2] which provides that before the granting any appeal whatever the attorney praying the same shall certify to the Court in writing reasons for his motion, with his opinion that the same are good and sufficient in law why such appeal ought to be granted.; which certificate, signed with the name of said attorney, shall make part of the record, and be transmitted with the other transcript of the cause to the Superior Court. SCOTT, for the appellant, suggested diminution, and laid sufficient ground to induce the Court to believe that reasons had been filed in the court below, upon which he prayed for a certiorari. [fn2] 1794, c. 1.

Opinion of the Court

Per Curiam.

The practice has been settled to dismiss appeals for the want of reasons, but this is founded in the presumption that no reasons were filed in the court below, but when this presumption is destroyed by proof that they were filed, surely this court would do wrong to dismiss the appeal, and thus prevent an examination of the cause before the superior court, which is the object of an appeal.

If sufficient cause be shewn by affidavit, or otherwise a certiorari ought to issue

Motion to dismiss overuled and a certiorari awarded.

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