Ball v. Warren , 16 How. Pr. 379 ( 1857 )

Harris, Justice.

It, was objected on the part of the defendant that this motion is premature, inasmuch as no return had been made to the writs of certiorari. Were this to be regarded "as a motion to quash the writs for irregularity, the objection would be well taken. But regarding it as an application to supersede the writs, because improperly allowed, the objection cannot prevail. “ If the writ be misdirected or otherwise bad in point of law,” says Tidd, “ the court will order it to be quashed if before them, or if not returned will grant a super• sedeas.” (1 Tidd's Pr. 335. See also 2 Burrell's Pr. 250; Graham's Pr. 557; Ferguson agt. Jones, 12 Wend. 241.)

It becomes necessary, therefore, to inquire whether the writs were properly allowed. Judgments had been recovered against all the defendants in each action. Executions had been issued and a levy made upon the property of the defendants. As to all the defendants except Warren, these judgments and executions remain in full force. As to Warren, the effect of the order of the 14th of May, was not to vacate or set aside the judgments but to suspend proceedings until it should be ascertained by a trial whether this defendant in fact had a defence to the actions. If upon such trial he should be able to sustain his defence, the judgments might be set aside, but if not, then they would be enforced.

The statute provides that a certiorari to remove an action into the supreme court from an inferior court, shall not be effectual for that purpose, unless it be filed with the clerk of the court before judgment is entered in such action. (2 R. S. 389, § 7.) In these cases judgments had been entered, and had not been vacated. The writs, therefore, were not effectual to remove the actions. The plaintiffs are entitled to an order that the writs of certiorari be superseded. I think, too, that the defendant should be charged with the costs of the motion.