Furbush v. Cunningham , 56 Me. 184 ( 1868 )

Barrows, J.

This is a petition for a writ of certiorari to. bring up and quash the record of the respondents, sitting as justices of the peace and quorum, upon a citation procured by the petitioner, wherein it was adjudged, by a majority of the respondents, that the notice given by the petitioner was insufficient and that he should not be permitted to disclose thereupon.

Doubts have been suggested whether, under the present provisions of our statutes, the writ of certiorari can properly issue in any case of this kind. See Pike v. Herriman, 39 Maine, 52, and Ross v. Ellsworth, 49 Maine, 417. It is unnecessary to decide the question here. When some manifest error on a point of law is disclosed by any record which justices are required to make in these cases, and that error is shown to be injurious to the petitioner, and capable of being corrected by the writ and the proceedings thereon, so as to relieve the petitioner from the apprehended mischief, we shall feel bound to settle that question.

Upon a petition presenting such a condition of things, it would be a matter for careful consideration, whether the notice ought not to go to the party adversely interested, to appear and show cause against the granting of the writ, rather than to the magistrates, who have no interest in the matter to be affected and no duty to perform, except to present the record when the petitioner makes out a case requiring the intervention of the Court.

But, without determining any of these matters, it is sufficient here to say, that, as remarked by Morton, J., in Gleason v. Soper, 24 Pick., 181, "a petition for a certiorari is always an application to the discretion of the Court.’» And the Court will not entertain such a petition for the correction of merely harmless errors which can, in no event, seriously prejudice the petitioner.

In this case the facts are admitted to be set forth in the petition. The gravamen therein alleged appears to be, that .a majority of the justices held that the citation should have been served upon Nathan Mower, assignee of the claim sued in the action wherein Furbush was arrested, instead of being served upon James Bell, the plaintiff of record and judg'meut creditor, and thereupon " refused to hear the disclosure of said J. B. Furbush, as will more fully appear by the record of said justices, the substance of which record is recited in the case, James Bell v. J. B. Furbush and others, brought upon said bond and now pending in this Court.”

But, in the suit thus referred to, we have found the defendants (Furbush & als.) entitled to judgment, notwithstanding this action on the part of the magistrates ; so that, granting there was error in their decision, nobody was harmed thereby, nor could any benefit result from quashing the proceedings.

There is nothing in the copies before us to show that the respondents have not volunteered a needless appearance here. Their claim for costs, made arguendo, is therefore disregarded. Petition dismissed without costs.

Appleton, C. J., Kent, Walton, Daneorth and Tapley, JJ., concurred.