Jones v. Tomlinson

8 Ala. 565

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

GOLDTHWAITE, J.

The constant course of practice is to discourage tho dismissal of appeal and certiorari causes for any matters not connected with the rights of the parties. If it is conceded the clerk of the Court has no authority to administer an oath in vacation, except in cases expressly directed by law, this was no reason to dismiss the certiorari, as the Court shouldhave looked to this matter before awarding the writ; or if it after-wards became in any manner important, the petition might have been verified when the cause was proceeding. We do not perceive, however, in what manner a verification of the petition is important, except as shewing the true grounds upon which the certiorari is asked, and if all the facts stated were false, it would not affect the validity of the writ, or prevent the cause from being tried de novo.

In Curry v. Briant, 1 S. & P. 51, it is said, if the judge granting the certiorari deems the facts stated to be sufficient, the Courts will not afterwards entertain motions to dismiss.

We think the dismissing the cause, for the ground stated, was erroi;.

Reversed and remanded.