Dyer v. Lowell

33 Me. 260

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1851
• Status: Published

Opinion

Tenney, J., orally.

— The writ of certiorari is grantable at the discretion of the Court. If granted, it is with a view to have the record quashed.

When once the record has been permitted to be brought under examination, the Court no longer has any discretionary power over it. If erroneous it must be quashed.

Upon the petition for the writ, certain errors were assigned, examined and adjudicated upon.

The writ was allowed, and having been served by the officer, is now before us, and several objections to the process, are now taken by the respondents.

Note. — The Court, having denied the motion to set aside the writ, proceeded to examine the errors alleged in the petition, as published, 30 Maine, 217, and thereupon quashed the record of the partition.

1. That it was a copy, and not the original of the record, which was sent up by the Judge of the District Court; whereas it is the record itself, and not a transcript of it, which is sought to be quashed.

This objection is without weight. The record may be adjudged of, and acted upon by the examination of a copy, as well as of the original.

2 and 3. One of the respondents has appeared, and is now being heard upon those objections. It appears by the officer’s return, that he was duly notified. But if not, that omission is waived by his appearance.

It is said that Lowell had left the State, before the issuing of the writ. But a general appearance was entered for him at the first term. Notice appears to have been left with his family. He appeared to the original process, and was heard upon it, and knew its result, and must have expected the issuing of the writ. There was, therefore, no want of sufficient notice.

4. It was not necessary, to insert in the writ an assignment of the errors. An assignment in the petition is sufficient. Commonwealth v. Sheldon, 13 Mass. 188.

5. Purchasers are bound by proceedings, instituted prior to their ownership. Such proceeding cannot be made ineffectual by a mere conveyance of the property. This process is but a continuation of the former one.

The motion to quash the writ is overruled.