
    Knox v. Carter.
    Certiobari. Want of Merits. A petition for certiorari, to bring up a judgment by motion before a justice of the peace against an officer for the non-return of an execution, was properly dismissed for want of merits, where it states that the officer received the execution, made search and could find no property of defendant, and made his return upon the execution accordingly, but which fails to state that the execution was in fact returned to the office of the justice, when it was lost, or that the loss was through no default of petitioner.
    FROM KNOX.
    Appeal in error from the judgment of the Circuit Court dismissing certiorari, October Term, 1871. E. T. Hall, J.
    Prossee, for plaintiff in error.
    Webb & Tayloe, for defendant in error, who said:
    The question in the record is as to the correctness of the Circuit Judge in sustaining motions to dismiss an original and amended petition for certiorari and supersedeas to be relieved from a judgment by motion, for the failure of the constable to return an execution. The judgment was rendered against the plaintiffs in error as sureties upon the bond.
    The grounds relied upon to sustain the action of the court as to the original petition, are:
    1. That the petition alleges as an excuse for Lusk not having appealed, that he was poor and unable to give the appeal bond, but fails to allege that his inability so to do, continued for the two entire appeal days. See Adair v. Davis, 3 Hum., 137.
    ' 2. That the petition is contradicted by the papers in the case. See History of a Lawsuit, p. 475, sec. 669, sub-sec. 5.
    3. The amended petition, although it acknowledges the receipt of the execution by Lusk, does not state that he ever returned it.
    4. The amended petition contradicts the original petition, admits the reception of the execution, and virtually admits that it was never returned.
    5. The judgment upon which the certified petition was issued from Carter county, was rendered previous to the war, and the calculations as to the amount for which judgment was rendered by the justice, were based upon the case of Hepburn v. Griswold, 8 Wal., 603, which was the law at the date of the judgment.
   McEablastd, J.,

delivered the opinion of the court.

Wm. B. Carter, as surviving executor of the will of A. M. Carter, deceased, moved for and obtained a judgment against J. P. Lusk, a constable of Knox county, and his securities on his official bond, for failing to return an execution issued and delivered to him, founded upon an execution issued by a justice of the peace of Carter county, and certified under the statute. ' The judgment against Lusk was rendered on the 16th September, 1870, by R. L. Joroulman, a justice of the peace of Knox county, and w^s brought into the Circuit Court of Knox county by certiorari, for the purpose of having the same quashed. A motion to quash the execution issued thereon was made, and at the same time a motion was made by the plaintiffs to dismiss and discharge the certiorari and supersedeas. Without disposing of these motions, leave was given and an amended petition filed, presenting additional reasons for not. appealing, and also setting forth more fully the supposed grounds of defense, upon the merits. The Circuit Court afterwards dismissed the certiorari and supersedeas, and rendered judgment for the amount of the justice’s judgment, interest and costs. From this judgment the securities of Lusk, as constable have appealed.

Taking the original and amended petitions together, they perhaps state sufficient ground for not appealing, under the authority of our reported cases.

The motion was made for the failure of Lusk to return the execution. In this amended petition, it is stated that Lusk received the execution, made search, could find no property of the defendant, and made his return upon the execution accordingly, but that by some unavoidable means the execution has been lost. He does not, however, state that the execution was ever in fact returned to the justice, or when or how it was lost — whether before or after the time it should have been returned; nor doés he show that he used diligence, or that the execution was lost or destroyed without fault’ upon his part. It is clear, therefore, that no meritorious ground of defense is shown to the motion, and the certiorari was properly dismissed.

Let the judgment be affirmed.  