Majority
p. 647George & George vs. Orcutt & Orcutt. ALBANY, March, 1839.
Headnote
A certiorari to remove a cause from a court of common pleas into this court, must be filed eight days before the first term at which the issue joined in the same might be tried, if the cause was not removed.Motion to quash a certiorari removing this cause from the Onondaga C. P. into this court. After issue joined, the cause was noticed for trial in the court below, and the trial was put off by the defendants on payment of costs. The cause was again noticed for trial for a subsequent term, and the plaintiffs made preparations for the trial, when the defendants sued out a certiorari to remove the cause into this court, but did not pay the plaintiffs’ costs for the second notice of trial. The plaintiffs now move to quash the writ.
A. Taber, for the plaintiffs.
M. T. Reynolds, for the defendants.
By the Court,
A writ of certiorari to remove an action into this court from the common pleas, must not only be filed with the clerk of the C. P. before any juror has been sworn, 2 R. S. 389, § 7, Day v. Gallup, 18 Wendell, 513, but it must be filed at least eight days before the first day of the term at which the issue might be tried, according to the practice of the court. If not filed within that time, the writ will only be effectual to remove the cause, on paying the plaintiffs’ costs, in noticing for trial. § 8. We shall, I think, most fully carry into effect the policy of the law, by holding that the writ must be filed eight days before
p. 648
the first term at which the issue could be tried, or else that the defendant must pay costs. But as this is a new question, the motion to quash the certiorari will be denied, on payment by the defendants, of the costs of the motion, and of preparing for trial in the C. P. on the last notice. The plaintiffs may change the venue to any county adjoining Onondaga.
Ordered accordingly.