The opinion
OPIRTON OW PETTTIOK TO EJ5HEAE.
Wilkes, J.
A very earnest' petition to rehear is filed, in which it is said that the-merits of the case appear so strongly that this Court should overlook the delay and allow a hearing' ■ of this case upon its merits; and the petitioners were justified or excused for the delay by the fact that negotiations *50 were pending and it was incumbent on the land company to notify petitioners before abondoning the negotiations for settlement. It is. said that the manifest injustice of • the judgment appears from the fact that it was taken for $1-99, when it had been previously conceded by the president of the company that the timber taken did not exceed $35 in value, and he had been paid that sum in full of the claims of the land company. This feature of the injustice of the judgment from the statement in the petition has already been adverted to, and need not be repeated except to say that the facts stated in the petition may not be found to be true on the hearing. As already said, the petition on its face presents a strong case of merits, but we think the reasons and excuses for the delay, at least after the failure' of the negotiations for settlement, are not, under the uniform practice of this Court, sufficient.
The general rule is that a certiorari, when sought to be used as a substitute for an appeal, must be applied for before or at the first regular term of the Circuit Court after the rendition of the Justice’s judgment, unless a sufficient cause for delay be stated in the petition. Trigg v. Boyce, 4 Hay., 100 ; Perkins v. Hadley, 4 Hay., 143 ; Love v. Hall, 3 Yer., 408 ; Tipton v. Anderson, 8 Yer., 222 ; Newman v. Rogers, 9 Hum., 121 ; Johnson v. Deberry, 10 Hum., 440 ; McMurry v. Milan, 2 Swan, 177 ; Brinkley v. Burney, 5 *51 Cold., 103 ; Mason v. Hammons, 7 Cold., 133 ; Lanier v. Williams, 1 Head, 442 ; Mason v. Westmoreland, 1 Head, 557 ; Nance v. Hicks, 1 Head, 625 ; Gillam v. Looney, 1 Heis., 319; Copeland v. Cox, 5 Heis., 174; King v. Williams , 7 Heis., 305.
In Perkins v. Hadley , 4 Haywood, 143, it was held that an application for certiorari made more than one year after judgment, would he refused, although it was manifest, under subsequent rulings of the Court that the judgment was Avrong, the course of decisions having changed in the meanwhile:
In Tipton v. Anderson, 8 Yer., 222 , it was held that a petition weuld not be sustained which was sworn out after three terms of the revising Court, no matter how strong a case might be made by the petition.
In Newman v. Rogers, 9 Hum., 121 , judgment was rendered 29th August, 1846: Hewman attempted to appeal. This appeal was dismissed at the October term, 1846. Petition for certiorari was tiled 4th June, 1847, or about eight months after the appeal was dismissed. It was said in an amended petition that the petitioner was absent from the county, and when he returned he entered into ' negotiations with the attorney of the opposing party for a compromise, but, owing to no fault of his, he did .not get an answer to his proposition until after the September term of the *52 Court. Tire Court held it was not sufficient excuse for delay and that it was incumbent on petitioner to take immediate steps to remove the case into Court.
In McMurry v. Milan, 2 Swan, 177, judgment was obtained 18th of February, 1852. On the llth of March one of the defendants’ suspicions was aroused and he ascertained that the notes of his son-in-law, upon which the judgment was taken, were forgeries, and on the 9th of April he filed his petition for writs of certiorari and supersedeas. The Court said it was a strong case of merit, and relief would be granted if it could be done without a violation of settled rules of law, and in a case of such hardship the rules might be extended but for the mischievous consequences of such a precedent and the importance of adhereing to settled principles.
In Smith v. Brown, 1 Heis., 320, note, it was held that a petition would not be entertained more than five years after judgment, although defendant did not know of the judgment, he conceding, however, that he was served with process.
In Gillam v. Looney, 1 Heis., 319, judgment was rendered February 24, 1866. Execution issued in June, 1868, and the petitioner alleged that this was the first reliable knowledge he had of the judgment. The Court held this language equivocal and that the delay was too great, and dismissed the petition.
*53 In McDowell v. Kellar, 1 Heis., 449, the cer-tiorari was applied for two years after judgment and several months after the . final decision in a case whose determination the. parties were awaiting, and the Oonrt held the petition should he dismissed.
In the present case judgment was rendered September IT, 1391, execution was issued in March, 1899. Eour terms of the Court had intervened after the negotiations .had apparently failed or ceased to be prosecuted, and, after a bill had been filed to subject the equitable interest of one of the defendants in a tract of land.
We cannot sustain a petition after such delay and upon such excuse without overturning the uniform rule or holding of our Court, and the petition to rehear must be dismissed.