Ex parte Isaacs

12 Wend. 193

• Court: New York Supreme Court
• Decided: June 5, 1834
• Status: Published

Opinion

By the court,

Nelson J.

The statute directs that a certio-rari of this kind shall not be effectual to remove a cause, unless it be filed in the office of the clerk of the court in which such action is pending, after the defendants shall have duly appeared. 2 R. S. 389, § 7. The statute, to be sure, speaks of an appearance by entering and perfecting special bail, if bail shall have been required ; but in analogy to the statute, when no bail is required as when the suit is commenced by declaration, the defendants should have caused their appearance to have been entered by the clerk before suing out the certiorari. The notice of retainer was not enough.

Motion denied.