In Re Judicial Ditch No. 2, Houston County

¹ Reported in 202 N.W. 52; 204 N.W. 318. On February 6, 1925, the following opinion was filed: The motion to vacate and set aside the writ of certiorari issued to review an order of the district court of Houston county in a judicial ditch proceeding, must be denied.

The order bears date November 21, 1923. Written notice of the filing of the order was not served on the attorneys for the petitioners for the ditch, but a copy of the order was mailed to them by the clerk of the district court. The writ of certiorari was issued more than 60 days thereafter. Section 8313, G.S. 1913, limits the time within which the writ may be issued to 60 days after the party applying for the writ shall have received due notice of the proceeding sought to be reviewed thereby.

To set at rest differences of opinion among members of the bar as to the meaning of this provision, it is proper to say that the construction we place upon section 8313 is that the time within which the writ may be issued does not begin to run until written notice of the order or other proceeding to be reviewed has been served upon the party adversely affected or his attorney, and that actual notice does not take the place of such written notice.

This construction has the merit of doing away with disputes as to whether or not a party had actual notice, and will establish a uniform rule of practice with respect to appeals from orders under section 8000, G.S. 1913, and the sections of the statute relating to writs of certiorari.

Motion denied.

On June 5, 1925, the following opinions were filed: