Allen v. Estell

Pee Ctjeiam.

This is a motion to dismiss a writ of certiorari for lack of prosecution. The writ was returnable at the January term, 1932, of the Supreme Court.

By the ninety-fifth section of the statute concerning Justices’ Courts (to review a judgment of which court this writ of certiorari was allowed) it is provided that the writ shall he prosecuted at the first time after due return thereto shall have been made ox be dismissed, unless good reason shall appear for failure to prosecute. Cf. 3 Comp. Stat., p. 3010.

It further appears that the ease was not noticed for argument; reasons were not filed in the canse until the end of April, 1932; the bond filed was insufficient in amount.

Certainly in this case there has been lack of prosecution and a failure to live up to the requirements of both the statute and the rules of this court relative to matters of this character. The failure to file sufficient bond is a transgression of the mandate of the statute itself (Cf. 3 Comp. Stat., p. 3009, § 94), and is in the nature of a failure of a condition precedent.

The application therefore to dismiss the writ is granted, with costs.