Miller v. Bush

21 Wend. 651

• Court: New York Supreme Court
• Decided: October 15, 1839
• Status: Published

Opinion

In this case a common law certiorari was issued to a justice of the peace who had rendered a judgment in favor of Bush against Miller. The certiorari was of course returnable in this court. One of the errors relied on by the plaintiff for the reversal of the judgment was, that the justice refused leave to the defendant below to withdraw his demurrer to the plaintiff’s declaration and to plead de nova, after judgment against him on the demurrer. There were other questions in the case which it is not deemed important to notice. In respect to the above question, This Court held, the opinion being delivered by Mr. Justice Bronson, that they could not upon a common law certiorari review the decision of the justice in refusing the defendant leave to withdraw the demurrer and to plead. 17 Wendell, 464.