Ex parte Isaacs

Headnote

Before suing out a certiorari to remove a cause from the common pleas into this court, the defendant must cause his appearance to be entered; simply giving notice of retainer is not enough.

This was a motion for a mandamus, directing the New-York common pleas to make return to a certiorari, issued to remove a cause into this court, commenced in the common pleas by S. & E. Peltier against the relators. The suit was commenced by the filing and service of .a declaration on the defendants, on the 13th of February, in which suit the plaintiffs demanded a sum exceeding $500. The defendants retained an attorney, who, on the 14th Februrary, served a notice of retainer, and on the 17th February sued out a certiorari. returnable on the first Monday of Mayh to remove the cause into this court, filed the same with the clerk of the common pleas, and gave notice of the proceeding to the plaintiffs’ attorney. No return was made by the common pleas to the certiorari; and on the 19th day of May, the plaintiff proceeded in his suit in the common pleas, by filing an affidavit of the service of the declaration, causing the appearance of the defendants to be entered, and taking the necessary steps to have the damages of the plaintiffs assessed by the clerk. On this state of facts, the relators moved for a mandamus directing the common pleas to return the certiorari; which motion was resisted, on the ground that the certiorari had been issued irre

gularly, the appearance of the defendants not having been entered previous to the suing out of the writ.