George & George v. Orcutt & Orcutt

19 Wend. 647

Opinion

By the Court,

Bronson, J.

A writ of certiorari to remove an action into this court from the common pleas, must not only be filed with the clerk of the C. P. before any juror has been sworn, 2 R. S. 389, § 7, Day v. Gallup, 18 Wendell, 513, but it must be filed at least eight days before the first day of the term at which the issue might be tried, according to the practice of the court. If not filed within that time, the writ will only be effectual to remove the cause, on paying the plaintiffs’ costs, in noticing for trial. § 8. We shall, I think, most fully carry into effect the policy of the law, by holding that the writ must be filed eight days before the first term at which the issue could be tried, or else that the defendant must pay costs. But as this is a new question, the motion to quash the certiorari will be denied, on payment by the defendants, of the costs of the motion, and of preparing for trial in the C. P. on the last notice. The plaintiffs may change the venue to any county adjoining Onondaga.

Ordered accordingly.