Snyder v. Roper

Per Curiam,

Wilson, Justice.

This was an action commenced before a justice of the peace, by Roper against Snyder. Judgment was rendered by the justice, against Snyder, on the 26th September, 1840, and on the 10th day of October following, the plaintiff made application for a certiorari, and filed his bond according to law, in the office of the clerk of the District Court. On the 14th day of the next November, the clerk issued the writ of certiorari. The court below dismissed the writ of certiorari, because the writ was not issued within thirty days after the rendition of the judgment by the justice ; which dismissal is the error assigned in this case.

The statute upon the subject of writs of certiorari, approved January 14th, 1846 ; section 13, provides, “ that the party, or any of the parties aggrieved, in any case of trial or judgment before a justice of the peace, either by jury or otherwise, may take the same to the District Court of the proper county, by writ of certiorari, to be issued from said court, by the clerk thereof, upon the applicant giving bond with sureties, approved by said clerk, within thirty days after such trial or judgment, conditioned, &c,”

The thirty days refer not only to the filing of the bond, but the issuing of the writ. The grammatical construction of the sentence leads to this conclusion ; which is strengthened, if we endeavor to ascertain ¡he intention of the legislature, by looking at the consequences of putting any other construction upon the section. If we say that the time mentioned in the section refers only to the time of filing the bond, and that the writ may be issued afterwards, then the cause might be removed at any future time, and thus be suspended ad in finitum.

Judgment below affirmed.