¶1delivered the following dissenting opinion:
¶2I dissent from the conclusion of a majority of the court in this case.
¶3The plaintiff had fixed his lien on the property by his levy, had the papers returned to the circuit' court, an order of sale made, and was actively proceeding to sell the land under that order.
¶4He was stopped by certiorari and supersedeas of Grant, based on the proposition, that his property was not subject to levy and sale in this case/] because the principal debtor had property subject to execution, free from incumbrance. This was not a sufficient legal ground to sustain the supersedeas, but on motion of the plaintiff, it was held sufficient, and the ¿¿court refused to dismiss the petition. The: case then stood on the facts alleged, to be shown by proof, that proof to be made out by petitioner.
¶5Plaintiff could not be required to. make out a negative, that is that the principal did not have property *64unencumbered subject to execution. That he has not brought the case to trial on the issue in three years or near that period is a matter that cannot be charged on him as laches, or an abandonment of his levy, or even abatement of the rigor of his Us pendens. The record shows that in this period the reference, docket was not called for trial within the period of several years. But how this can be made to affect the lis pendens I am unable to see. It was the business and right of the court to call the docket, not of plaintiff. He could not call this docket for trial, nor do I know any rule of law which would enable him to compel the court to do so, in ordering cases. This being so, the case was pending as other cases on that docket, that docket not being called for trial for several years, and so the plaintiff had no opportunity to press his case. It was however the duty of the other party to take the active part in the case. He held the affirmative. How plaintiff could have sooner compelled him to proceed, I do not see from this record. Certainly I see nothing that shows either an abandonment of his levy, or any culpable neglect of his suit, by which his clear right fixed by his levy was lost.
¶6For these and other reasons that might be given. I respectfully dissent' from the opinion of the court.
¶7upon petition to rehear, said:
¶8In the elaborate argument submitted by the defendant in support of his petition for a rehearing it is not suggested that any material fact in the record. *65Ras been overlooked by the court, nor is a single new authority adduced upon the point on .which the case-was made to turn in the former opinion of the court.. There are some citations of cases where the lien of a judgment, a levy, or of a lis 'pendens has been allowed' to prevail after protracted litigation, and apparently unnecessary delay. But not one of these cases shows an-issue between the lien creditor and an innocent purchaser pending the litigation upon the laches of the-creditor in prosecuting his suit.
¶9The main ground of the argument is one that was considered by the court on the former hearing, namely, that the petition of Grant in the original suit of Roberts v. Bond and Grant was in the nature of a new suit in which Grant was the actor. But -no authority is adduced in support of this assumption, nor any argument made to maintain it upon principle. The writs of certiorari and supersedeas are' authorized by law to bring up the record or papers of a cause-before a justice of the peace for a new trial, as a substitute for an appeal, or instead of the common law writ of audita querela based upon something which has happened since the judgment. In either case the petition is only in the nature of an affidavit, and merely contains a statement of the facts on( which the writs are asked. If the petition be sufficient, the case brought up in the first class of cases is triéd de novo. It is the same case exactly, the parties occupying the same attitude, and the matters are to be tried as before. Such a petition is clearly not a new suit or in the nature of a new suit. If the petition and writs be *66based upon something which has happened since the judgment, they bring up the case as it stood before the justice after judgment, and the petitioner obtains relief or a hearing by moving to quash the execution, or other proceeding complained of: Linebaugh v. Rinker, Peck, 363; Sellars v. Fite, 3 Baxt., 131. The certiorari is directed to the magistrate and the super-sedeas to the creditor, officer or person having the execution. A notice is all that is necessary to bring the opposing party into court: Nicks v. Johnson, 3 Sneed, 324; McDowell v. Keller, 1 Heis. 450. The parties stand exactly as they did before, (Car. Hist, Law Suit, sec. 681,) the burden of proof being usually upon the petitioner to make out his defense, but it. may be thrown on the plaintiff by the nature of the issue, as, for example, by a denial under oath of the authority to sign the petitioner’s name as stay or: McDowell v. Turney, 5 Sneed, 226. The plaintiff before the justice is the plaintiff in the circuit court, and must prosecute the suit.
¶10Petition refused.