Steel v. West ( 1846 )

Reese, J.

delivered the opinion of the court.

The plainliifin error about the 5th of May, 1845, presented his petition to two justices to obtain a certiorari and supersedeas, on the ground of a judgment against one Robinson for one hundred and one dollars, and himself for eighty dollars, before a justice about the 19th of April, 1845. The process was awarded and the case brought up at the January term, 1845. No motion was made to dismiss the writs at that term, but leave was given to the petitioner by the court to file an amended petition, which was done. At October term, 1845, the plaintiff obtained a rule to show cause why the writs should be dismissed; but no argument or action was then had upon the rule. At the February term, 1846, the defendant moved the court for leave to file an amended petition for writs of certiorari and supersedeas. Leave was granted by the court, and an amended petition was duly drawn up, sworn to and filed. This petition not only shows that the judgment of the justice, as to the petition, was illegal, or in other words, showed what are termed merits, but showed likewise sufficient legal grounds, in our opinion, why the petitioner did not appeal. After this amended petition was filed, the plaintiff’s rule, to show cause why the writs should be dismissed, came on to be argued, and on argument the rule was made absolute and the writs dismissed and judgment rendered against' the petitioner. As this rule related to the first and second petitions, the judgments of the Circuit Court was correct. But, as we have said, the last petition contained matter to maintain the issuance of the writs. If the court had refused to grant leave to amend the petition, we should have been far from saying that such refusal would have been an improper exercise of the discretion of the judge over a question of practice of that sort. For certainly such amendments, like those to answers in Chancery Court, should be very guardedly awarded. But having granted the leave, and the amended petition having been duly filed, it presented a legal obstacle to the action which the court afterwards took in dismissing the writs.

Let the judgment be reversed, and the case be remanded and be tried in the court below.