Citation Numbers: 2 Hill & Den. 415
Judges: Cowen
Filed Date: 4/15/1842
Status: Precedential
Modified Date: 1/12/2023
By the Court,
It is not necessary to enquire whether the commissioner, by having made the verbal order and begun to sign the written one, had lost all control over the case; because he had a right, in strictness, to decline
It would no doubt be erroneous, in this and the like cases, for a commissioner to decide before the hour appointed; but after that has arrived, we cannot interfere by certiorari, merely because he may allow a longer or shorter time. It is enough if he return that, at the hour, the party interested to oppose not appearing, he proceeded accordingly. In practice, it is sometimes usual to wait an hour; (said in Shufelt v. Simmons, 20 John. R. 309;) sometimes only half an hour. (Bagley’s Chamber Pr. 22.) But, in strictness, the party must attend at the precise time, {Id. 23,) and all beyond is matter of practice or discretion, like a judge postponing a trial. The particular ■ circumstances which regulate the mind of the judge in granting or refusing the extension of time applied for, make no part of the record, and cannot properly be brought into the return to a certiorari. The doctrine of certiorari from a justice’s court has no application. That court is by statute bound to return various collateral matters ; and this court has gone a great, not to say an inconvenient length, in looking after minute matters of practice 3 sometimes, perhaps, of mere discretion.
Motion denied.