Hosmer v. Williams , 7 Cow. 494 ( 1827 )

Savage, Ch. J.

It was not without much hesitation that I allowed this certiorari. And after all, the allowance was rather with a view that the opinion of the whole court might be taken, on motion, than from a conviction that the writ will lie in a case like the present. On reflection, we are all clear that it cannot be sustained. A feigned issue is not a suit or action, within the meaning of those words, when used in reference to the jurisdiction of this court upon certiorari or habeas corpus. It is, in truth, merely incidental to the suit below; a part of the proceedings in *the cour'se of a non-enumerated motion there. The complete proceedings on such a motion would not be removable by certiorari; a fortiori, only a part of them. This feigned issue is a mere fiction, as its title imports, adopted to inform the court upon a fact by which they are to be guided in granting or denying an application to set aside one of their judgments. It is not even in name, an action or suit; much less in its properties or effect. The motion must be granted, with costs.

Motion granted.