Haight v. Rodgers

Headnote

In a case from a justice’s court, brought up and tried in a common pleas on appeal, and intended to be brought to this court by writ of error; the certificate of the presiding judge, certifying that it is a proper cause to be removed into this court, must be obtained within the time specified by statute. A writ of error brought upon a certificate obtained after that time has expired, will be quashed with costs.

Motion by defendant in error to quash the writ of error issued in this cause.—On the ground that no certificate had been obtained in due time, according to statute from the judge who tried said cause, or from any other judge of the court of the degree of counsellor at law of the supreme court; who was present at the trial of said cause; that in his opinion said cause was a proper one to be carried to the supreme court. This cause originated in a justice’s court. Action trespass; was tried in Oct., 1843; and a verdict rendered for Rodgers, defendant in error. • An appeal was brought and the case removed to the Dutchess common pleas. On the 17th February, 1844, the cause was tried and a verdict rendered for Rodgers. On the same day, on motion of C. W. Swift, Esq., attorney for Haight, an order to stay proceedings for sixty days, to prepare a case or bill of exceptions, was entered on the minutes. R. Barnard, attorney for Rodgers, went on and perfected judgment; on the 2d March, 1844, and on the 28th March served a copy bill of costs on attorney, for Rodgers with notice of retaxation for the 3d April, 1844, regarding the order to stay aforesaid, as only staying execution. On the 18th of April, Swift, attorney for Haight, requested of Barnard a stipulation to allow him to procure a certificate of the presiding judge, as none had then been obtained; which Barnard refused to give; and on the same day Swift served Barnard with papers and notice of motion to set aside the judg

merit, which was heard on the 18th June, and an order entered that Haight have sixty days to prepare and serve a bill of exceptions or case, and staying proceedings for thatpurpose, and also giving thirty days time to procure a certificate of the first or presiding judge, nunc pro tunc as of the 17th February, 1844, and dated on that day; judgment not be set aside. On the 10th December, 1844, Barnard was served with a certificate of probable cause ; copy bond and affidavit of justification of bail on the allowance of a writ of error, Barnard moved on the ground that the certificate required, of the presiding judge, was not obtained within the time required by the statute.