People ex rel. Cooney v. Judges of the Common Pleas

Headnote

It is not necessary for a justice of the peace, or other officer, to endorse their approval of a bond given on bringing a writ of certiorari from the common pleas; although it is well that justices should certify their approval in all cases upon such bonds.

The filing of the bond and return to the writ of certiorari by the justice is suffi cient evidence of his approval of the sufficiency of the sureties ( 2 Cow. 506 ). The statute (2 R. S. 256, § 112) does not require the justice to certify or file his approval, as it does in the case of an appeal bond (lb. 259, § 189).

An order of a common pleas quashing a certiorari, on the ground that the bond was not endorsed or certified approved by the justice or some other proper officer, is erroneous, but can not be;corrected by mandamus ( 20 Wend. 658 ).

Motion on behalf of the judges to vacate the rules allowing an alternative and peremptory mandamus, and all proceedings therein, and to quash the writs.

In May term, 1845, of the Rensselaer common pleas, a writ of certiorari, bond, and return thereto by a justice of the peace of Rensselaer county, was filed with the clerk of the court of common pleas of ^Rensselaer county, wherein Michael Cooney was plaintiff in error, and John Pitch defendant in error.

In September term, 1845, of the common pleas, Pitch, the defendant in error and attorney in person, moved to quash the writ, on the ground that there was no approval of the bond on file, either by the officer who allowed the writ, or the justice who made the return, and no endorsement of approval upon the bond whatever. The motion was opposed by the counsel for Cooney ; and on the 18th of October, 1845, the court of common pleas made an order, “ that the writ of certiorari be quashed, vacated and held for nought, unless the plaintiff in error filed the usual bond therein, with one or more

sufficient sureties to be approved by the court (common pleas); and also, within twenty days after the entry of the order, pay to defendant in error $10 costs of the motion.” The order was made upon the ground that there was no approval of the bond on file with the certiorari. On the 12th of December, 1845, an ex parte motion was made to this court, at special term, by John Koon, Esq., relator's counsel; and an order granted that a writ of alternative mandamus issue to the judges of Eensselaer common pleas, commanding and requiring them to vacate the order made by them on the 18th of October, 1845, quashing the writ of certiorari. At the succeeding February special term of this court (at which time the alternative writ was returnable), on producing due proof of the service of .the alternative writ on the judges of the common pleas in open court, and on producing proof to this court that no return had been made to the alternative writ, an order was made on the 12th of February, 1846 : whereupon the judges of the common pleas, in obedience to the command in the peremptory writ, by a rule entered in the minutes of the court of common pleas, vacated the rule quashing the writ of certiorari. Fitch, the defendant in error in the certiorari suit, stated that he was ignorant of the issuing of either the alternative or per - emptóry writ of mandamus, until the 17th of February, 1846. This motion was made for the last April special term, and put over to this term by consent.