Majority
p. 536BALDWIN against GOODYEAR.
Headnote
fIidM°t,thüid°á justice’s court, abatement, upon which is-but the justice joummcnt &tó the defendant, o/ obtaining provehisplea" whereupon, hé genetd issue! and went to trial on the merits, upon men? wa^a" gainst him, and then brought a certiorari to correct the crror of refusing to adjourn, and the cPpGiupon the merits; apptaithat0niy would lie; and the certiorari was quashed..°N coTlioxari to a Justice’s Court. Goodyear sued Baldwin in the Court below, by summons, on the 6th April, 1825. Baldwin pleaded his privilege as an attorney and counsellor of the Court of Errors, (then sitting.) On which, Goodyear took issue, and Baldwin requested an adjourn-menb to enable him to procure evidence to show the truth of the plea. This was denied. Baldwin then pleaded the-general issue; the cause was tried and judgment rendered aSa^nst h™- From this judgment, he appealed to the Common Pleas ; and also brought his writ of certiorari to' tMs C°Urt> which
T, - ., , , B vras now moved to set aside; and the statute (sess. . ^‘ 37, & 38, p. 294-5) was relied on as deHying a certiorari in this case,
J. L. Woods, for the motion.
S. S. SBaldwin and H. Stephens, contra.
The statute cited, puts the party either to his appeal or certiorari. Clearly he is not entitled to both, ; . The plaintui in error, supposes that he may bring a certiorari upon the formal error of refusing to adjourn; and have his appeal upon the merits. But whenever an issue is joined, he is confined to bis appeal alone. Here were two successive issues; first on the matter in abatement; and on this being passed upon and overruled, issue was taken and a trial had upon the merits. Both were the proper subject of appeal, and may be reviewed by the Court of Common Pleas. It is only where there is no issue that a certiorari will lie.[1]
Motion granted.
(a) (a) Vid. Harwood v. French, ante, 501.