People v. Schoharie Common Pleas — 1 Wend. 315

Majority

p. 315

The People, on the relation of Frederick T. Mattice, vs. Schoharie Common Pleas.

Headnote

„ For any error that intervenes Ln Justice’o/ier issuej°tned, the remedy is by appeal, and no* by certiorari,

Motion for a mandamus. The relator commenced a suit in a justice’s court, and the trial, after issue joined, was adjourned, on the application of the defendant, to the second .Monday, the tenth day of December, 1827, as was supposed by 7 . . . , ,* 7/, , . , . , 3 the justice, or intended so to be, (as he stated m his return.) On that day the parties appeared, and the defendant insisted that the cause was discontinued, as it had been adjourned to the ninth day of December, which was Sunday, and offered testimony to prove the fact. Testimony was received by the justice, and he decided that the cause had been adjourned to the ninth and not the tenth of December, nonsuited the plaintiff, and gave judgment against him for costs. The plaintiff appealed to the Schoharie common pleas, and the court quashed the same, on the ground that there not having been a trial, the remedy of the party was by certiorari, and not by appeal. A mandamus was asked for, to vacate the rule of the common pleas.

p. 316

John Jay Danforth, for relator.

By the Court,

The justice erred in receiving testimony as to the time to which the cause was adjourned. His docket, or the record kept by himself, of the proceedings, was the best and only proper evidence; that, however, is not the question this court is called upon to decide, which is, what is the remedy of a plaintiff where he is nonsuited in a justice’s court after issue joined % must he bring a certiorari, or may he appeal ? The common pleas quashed the appeal, it would seem, on the ground that the plaintiff’s remedy was by certiorari; in this they erred. It is only where there is no issue, that a certiorari will lie. (4 Cowen, 536. Ib. 501.) Every error that intervenes before the justice after issue joined, must be corrected by appeal, and not by certiorari. An alternative mandamus is granted.