
    Nolensville Turnnike Co. vs. Quinby.
    1. The proceeding by writ of ad quod damnum to assess damages, when the land of the applicant is subjected to a public easement, is not in derogation of the common law, but is in accordance with its provisions: If, therefore, the court have jurisdiction of the party or of the subject matter in such proceeding, although its proceedings may be erroneous, the judgment is not void.
    2. The provision in the act bf incorporation of the Nolensville Turnpike Company, authorizing the proceeding by writ of ad quod damnum against the company is constitutional. The company accepted the charter, with a full knowledge of the remedy given to landholders who might be aggrieved by the exercise of the powers granted to the company.
    3. The act of 1794, ch. 1, sec. 66, authorizing an affirmance of judgment by the superior courts on appeals from the county courts to the superior courts,' where the* .party appealing had failed to carry up the transcript, is applicable to appeals from the county court to the circuit court.
    The Nolensville Turnpike Company in the laying down and constructing of the road, for which the charter was granted, took possession of and occupied a portion of the land of Susan Quinby. At the October session of the county court, for the county of Davidson, she appeared before the court, and moved the court to order the sheriff to summon and empannel a jury of twelve disinterested freeholders, to meet upon the premises of said Susan Quinby, over which is run the Nolensville turnpike road, and assess her damages by reason thereof. The following order was made thereupon: “It appearing to the county court, that notice of this application, more than ten days previous thereto, was served on the president of said turnpike company, and. it appearing that no compensation has been made by the said turnpike company for the injury, and that this application is made within one year since the finishing and opening said road: It is ordered, that the sheriff summon a jury to view the road and assess the damages and report to the court.
    At a subsequent term the report of the jury was made, stating that they had met on the premises of Susan Quinby; that they had been duly sworn; that they had ascertained that the road run through her land, and occupied a portion of it; and that she was injured to the extent of $250. This report was confirmed by the court, and it was ordered that Susan Quinby recover the said sum of $250, and costs. The case was taken to the circuit court, from thence to the supreme court, where it was reversed and remanded to the county court for further proceedings. On the return of the case to the county court a new jury was summoned by the sheriff on the order of the county court. The jury assessed the damage of the plaintiff at $200. This report of the jury was confirmed, and it was ordered that the plaintiff recover the said sum of $200, and costs. From this judgment the defendant appealed. The transcript was not filed by the appellant in the time required by the act of 1794, ch. 1, and the transcript was presented by the plaintiff, and a motion made to affirm the judgment. This was resisted by the defendant on the alledged ground, that the clerk was induced not to send up the transcript by the interference of the plaintiff’s attorney; in support of this, affidavits were read. The defendant moved to quash the proceedings of the county court. This motion was overruled, and the judgment affirmed. From this judgment the defendant appealed.
    
      R. N. Williams, for the plaintiff in error.
    The circuit court erred in refusing to quash the proceedings of the county court, and in affirming its judgment. The judgment of the county court was void for several causes.
    1st. Because the county court had no jurisdiction of such a cause, its jurisdiction having been taken away by the act of 1835, sec. 7 and 8, C. «fe N. 201-2. The court having no jurisdiction of the subject matter, its judgment is void. Age vs. Dement, 1st Humph. 332.
    2d. Even if the court had jurisdiction, its judgment is void, because it does not recite the facts which are necessary to its validity. These are: — '
    1. Ten days notice to the president of the intention to apply to the court for a writ of ad quod damnum.
    
    2. The application for said writ.
    3. The granting of said writ.
    4. Issuance of such writ, directed to sheriff.
    5. The summoning and empannelling the jury of disinterested freeholders, by the sheriff.
    6. The finding of the inquest by the jury.
    7. The return of that inquest by the sheriff: and,
    8. A motion for judgment upon it — See acts . 1829, ch. 205, sec. 5, page 161.
    These requisites do not appear, and the judgment is, therefore, void. See Jones vs. Read, 1st Humph. 335; Barry vs. Patterson, 3d Humph. 313, and Burt vs. Davidson, 5th Humph. 425.
    The act authorizing this summary mode of proceeding is in derogation of common law, and must be strictly construed— See Baker & Hunter vs, Agey, 2d Humph, 14.
    3d. The act of the Territorial Assembly of 1794, does not apply to our circuit courts, but was made and intended to apply to the old superior court, created by that act. And we have no act giving the same rules of practice to our present circuit courts.
    4th. Even if that act was applicable to the circuit court, the defendant, here, could not take advantage of the fact, that the transcript was not filed in time, because her counsel interfered and prevented the filing of it by the clerk.
    5th. The act authorizing summary proceedings against this company is unconstitutional and void, because it is a law operating on a few companies only, and not upon all — See Budd vs. The State, 3d Humph. 473, and cases there cited.
    
      McDonald, for the defendant in error.
   Gueen, J.

delivered the opinion of the court.

This case is a proceeding against the plaintiff in error under its charter, by the defendant Quinby, by writ of ad quod damnum, to recover damages, by reason of the laying out said, road on her land. The jury awarded $200, and the county court gave judgment therefor; from which judgment the Turnpike Company appealed.

The plaintiff in error, failing to file the record in the circuit court, fifteen days before the commencement of its term, as the act of 1794 requires, the defendant in error, moved the court for an affirmance of judgment, as said act authorizes. The plaintiff in error resisted this motion, and read the affidavit of the clerk of the county court, in which he states “that a month or so before the setting of the circuit court, the attorney for Quinby, came into his office, and enquired whether the record in this case had been carried up by the defendant: affiant informed him it had not, and he told affiant to let it, be until called for by the defendant. Many causes are compromised after the appeal is prayed, and for this reason affiant has ceased his former habit of making out and filing records, unless requested by one of the parties; and he thinks he probably would not have filed the record in this case, if the attorney for Quinby had said nothing about it.”

The court gave judgment on the motion, affirming the judgment of the county court, from which judgment the plaintiff in error appealed to this court. It is now insisted that the county court judgment was void, and therefore could not be the foundation of a valid judgment in the circuit court.

, 1. It is said this is a summary proceeding, and the record shows that the requisites of the law have not been strictly pursued — and therefore, the judgment is void. We do not understand this to be h summary proceeding, in the sense in which that term is used, in relation to tax sales, judgments by motion, &c. Those proceedings are in derogation of the common law, which requires that the defendant shall be proceeded against by the proper form of action, having notice, and a day in court. When, therefore, a party is adjudged to pay money, on motion, without notice, or to have his land sold by an ex-porte proceeding, consisting of the report of the sheriff, and the judgment of the court; it has been deemed reasonable, that he who claims a benefit under such proceeding, should be required to show that the forms of the proceeding prescribed by .the statute, have been strictly pursued. But this proceeding, by the writ of ad quod damnum to assess damages, when the land of the party is taken for a public easement, is not a derogation of the common law, but is in accordance with its provisions. If, therefore, the court had jurisdiction of the party, and of the subject matter, although its proceedings may be erroneous, yet the judgment is not void.

2. It is next insisted that the act of incorporation of this company, authorizing this proceeding, is unconstitutional, because it does not apply equally to all Turnpike Companies. There is no analogy between this case and the case of the State vs. Budd, 3 Humph. R. 483. In that case, the charter of the Union Bank declared that an act done by the clerks ofthat bank, should be felony; which was not a felony if perpetrated by other clerks — and thus the legislation was partial, and hence not the law of the land. But in this case, a remedy is conferred in favor of the owners of land, against the corporation, and the Turnpike Company complain of the law as partial — certainly the Company have no right to complain — for the charter with the provisión in it was tendered to them, and they subscribed the stock, and organized the company, with a full knowledge of the privileges and liabilities it created.

3. It is said the act of 1794, under which this judgment was affirmed, has no application to'our present system, because it applied to the superior courts, which at that time were the supreme court of the state. It is true, in 1794, the superior courts were the courts of the last resort; but it is also true, that in the change of the system in 1809, the jurisdiction of the superior courts was conferred on the circuit courts; and in all cases where an appeal had been allowed from the county to the superior courts, thenceforward, an appeal lay to the circuit courts, subject to the same rules of practice.

4. It is said that in this case, there ought not to be a strict application of this act of assembly, in favor of the defendant in error, because his attorney intermeddled with the clerk, and prevented the record from being filed in time. We do not think the attorney, for Quinby, can be regarded as having inter-meddled in this affair. We had a very natural solicitude to know whether the appeal would be prosecuted, and did nothing more than ask for information, whether it had been taken up. When asked by the clerk if he wanted the record, he said no, let it be, until the defendants call for it. This conversation could, properly, have no influence upon the clerk, to prevent him from filing the record, was evidently not intended to produce s.uch result; and from the clerk’s own statement, it is manifest, exerted no influence upon him.

We are therefore of opinion, there is no error in the judgment of the circuit court, and order that it be affirmed.  