Sawyer v. Wood — 18 Wend. 331

Majority

p. 331

Sawyer vs. Wood.

Headnote

Where a cause is removed by certiorari from the common pleas into this court, no proceedings can be had here until the return day, although the certiorari be actually returned previous to the return day.

It is otherwise in the common pleas in respect to a certiorari to a justice’s court. UIUI

[632] This cause was removed by certiorari from the Schoharie common pleas to this court. It was at issue and ready for trial when the cer

p. 332

tiorari was sued out. It was returnable the first day of October term, 1836. The plaintiff caused it to be returned previous to the return day; and, noticed the cause for trial at the Schoharie circuit, October 24th, when the cause was called regularly on the calendar, and an inquest taken.

S. Stevens

now moved to set aside the inquest for irregularity, on the ground that the writ could not be returned so as to possess this court of the cause, till the return day.

D. Cady, contra,

relied on the words of the statute. (2 R. S. 390, § 10, 11.) He said it was the constant course to proceed upon these returns from a justice’s court to the common pleas, before the.return day. (2 R. S. § 177, 180.)

By the Court,

The statute cited is, that the clerk shall make return of the certiorari, annexing certain papers; the supreme court may compel a return; and “upon the same being made,” the like proceedings shall be had as if the cause had been commenced in that court, beginning where the proceedings ended in the court below. “ Upon the same being made,” means regularly made. It is of the nature of process that it cannot be returned so as to take effect previous to the return day. (Smith v. Bush, 2 Wendell, 279.) In this respect the statute has made no alteration. The statute cited relative to a certiorari to a justice from the common pleas, requires the justice to return within ten‘’days after the writ is served on him, (§ 177;) and § 180 authorizes immediate proceedings on the return being made. This depends on the peculiar provisions of the statute, which has thus expressly altered the effect of the process. It requires a return before the return day, if that lie beyond the ten days. Such a proceeding is anomalous. I remember no other case like it by statute or at common law. Motion granted.