Wallace v. Jameson

Opinion by

Mr. Justice Mitchell,

It would be sufficient to dismiss this writ for the reason given by the learned judge below, in refusing to regard it as a supersedeas, that the appellants had taken it out and had it in their hands when they moved the court below to quash the array of jurors, and having thus submitted their case to the jurisdiction of the court after the issue of this writ, they are in no position to say now that the record had been removed, and the court wras without authority to proceed. The decisions which hold that the record is to be treated as removed only from the time of actual filing of the writ in the court below, and not from the time of issue out of the office of this court, were intended to save the action of the court in the cause while the record is still actually there, and the court has no official knowledge of tbe order for its removal. They have no application to such a case as this.

But the writ must be quashed on broader grounds. It is not the appropriate remedy, and it was issued prematurely without allowance. The suit was a common law action for libel. During its progress, before its actual call for trial by the jury, various dilatory motions were made, for change of venue, to quash the array of jurors, a plea in abatement to the jurisdiction of the court as then constituted, etc. These matters are not ordinary subjects of certiorari. It is true they are regulated ,by statute, and that certiorari is the proper writ to review proceedings out of the course of the common law, but these matters were not statutory proceedings in that sense, but mere interlocutory steps in the course of a common law action. It has never been held that a party can bring his case to this Court piecemeal in this way, merely because some of the preliminaries to the trial have been regulated by statute somewhat at variance with' ancient common law forms. If a defendant could have the case reviewed in this way at every step, he could delay the plaintiff indefinitely, and load this Court with matters that belong to the tribunals of first instance. He must wait until he is aggrieved by a final judgment, and bring the whole case here at the same time.

The certiorari moreover was issued without an allocatur. It is not a writ of right unless made so by statute, Am. & Eng. Ency. of Law, tit. Certiorari, sec. 5, and in theory at least must always be allowed specially. While this requirement is commonly regarded as merely formal, yet that practice is limited to writs for purposes of review only after judgment: Com. v. Nathans, 5 Pa. 124. In re Road in Selin’s Grove, 2 S. & R. 419,' the certiorari was quashed because it appeared that the quarter sessions had made no final order.

Certiorari quashed.