Bird v. Silsbie

Headnote

If the return a certiorari Is híconducMn relationtherecourt will not only order him to amend, but to pay the costs of the application to compel him to amend, proper notice of the motion being given to him.

Where a writ of certiorari recited that B impleaded S before the justice, and by mistake recited that judgment was given against B, whereas it should have been for B, and then commanded the justice to certify the said proceedings and judgment, with the process, pleadings and other things, touching the same, &c. and the judgment was correctly stated dn the affidavit on which the certiorari was allowed; held, that this was. not such a misdescription as warranted the justice in returning that there was no such cause before him as was stated in the writ.

But the court said he might amend if he chosgi

On eerliorari to a Justice’s Court. The writ recited that Bird impleaded Silsbie before the Justice, &c. in the usual f°rmian<^ by mistake, recited that judgment (as it is alleged) was given against Bird; whereas the recital should have been for Bird—the object of the certiorari being to

inverse a judgment in favour of Bird, on the ground that-it was not for enough. The writ then commanded the Justice to certify the said proceedings and judgment, with the process, pleadings and other things, touching the same, &c. The Justice returned, that there was no such judgment, nor any record of such judgment, before him, and said nothing as to any proceedings, although a copy of the affidavit on which the certiorari was allowed, detailing the evidence in the cause, was served on him with the writ; and in this affidavit the judgment was correctly stated. The attorney for the plaintiff, before the return was filed, applied to the Justice to know if he had made a return, and he replied that he had, and it was filed in the Clerk’s office at Utica. The attorney was then at considerable trouble in •sending and having the Clerk’s office searched, without being able to find any return. He mentioned this to the Justice, who made little or no reply. The return had not been filed as the Justice stated, but he had made it out, and put-it in the hands of the defendant’s attorney to be filed.

A motion was now made to amend this certiorari and return, and for such further rule, &c. ; and notice of the motion, with copies of the papers for the motion, detailing the above facts, had been served on the Justice and the defendant’s attorney.