People ex rel. White v. Albany C. P. , 12 Wend. 263 ( 1834 )

By the Court,

Savage, Ch. J.

The statute regulating the allowance of a certiorari to a justice is as follows : “ The party intending to apply for such certiorari shall make or cause to jibe made an affidavit, setting forth the substance of the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded.” 2 R. S. 255, § 117. “ Such affidavit shall, within twenty days after render-jng sucj1 judgment, be presented to the first judge of the county courts where the judgement was rendered, or some other judge or officer authorized to perform the duties of a justice ot the supreme court at chambers ; and if such judge or officer shall be satisfied that any error affecting the merits of the controversy has be'en committe'd by the justice or jury, in the proceedings, verdict or judgment, he shall allow the certiorari by endorsing his allowance thereon.” § 172. It is well settled that no supplemental affidavit, affecting the merits, can be regularly presented after the 20 days have expired. 6 Johns. R. 327. 1 Cowen, 48. 2 id. 440. The supplemental affidavit in this case is more full in stating the testimony and proceedings than the first, but contains no collateral fact; which is the only legitimate object of presenting a supplemental affidavit. , It was therefore a nullity. If the judge considered it in allowing the certiorari, he was irregular in doing so. The affidavit of the 14th July was presented in season, but a certiorari was not submitted for allowance until the 16th August. The statute does not limit the time within which the judge shall act upon the affidavit presented for the allowance 'of a certiorari, but it evidently contemplated immediate action, and certainly that no longer delay should occur than what was necessary to enable him to determine whether an error had been committed or not. By the 175th section, the certiorari, &c. must be served on the justice within ten days after allowance; the affidavit is to be presented within twenty days, making in all 30 days between the judgment and the service of the certiorari on the justice, which comports with the time within which an appeal is to be served, in causes where an appeal is the proper remedy. See § 191, p. 259. The 172d section directs that if the judge shall be satisfied that an error has been committed, he shall allow the certiorari. It may be asked what certiorari ? and how is the certiorari to be procured for allowance ? The statute is silent» but must be understood as referring to the established and well known practice of presenting to the judge a writ of cer-tiorari, together with the affidavit containing the testimony and proceedings alleged to be erroneous. The judge is not to procure or draw the writ. It must be presented to him and is a necessary paper to be produced to him before he can perform his duty. The writ should therefore have been presented by the attorney with the affidavit; the affidavit alone was not sufficient. No writ having been furnished until the 16th August, and the presenting an affidavit without the writ being of no effect, the writ and affidavit are to be considered as presented for the allowance of the certiorari on the 16th August.

The plaintiff in error having failed to comply with the statute, the common pleas should have granted the motion to supersede the writ.

Peremptory mandamus granted, with costs.