People ex rel. Gilmore v. Donohue

New York Supreme Court

People ex rel. Gilmore v. Donohue

59 How. Pr. 417, 29 N.Y. Sup. Ct. 470

DecidedSeptember 15, 1880

StatusPublished

This text of 59 How. Pr. 417 (People ex rel. Gilmore v. Donohue) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Gilmore v. Donohue, 59 How. Pr. 417, 29 N.Y. Sup. Ct. 470 (N.Y. Super. Ct. 1880).

Pincite

Opinion

Barrett, J. —

The writs of certiorari were quashed below upon a misunderstanding of what was decided in The People agt. Peabody (5 Abb., 194), and Devlin agt. Platt (11 Abb., 398). These cases undoubtedly support the familiar rule that the writ does not lie until the proceedings are terminated. But the precise question now involved did not arise. Here the final judgment has been pronounced, formulated, signed and entered of record. ¡Nothing whatever remains to be done. We think that for the purposes of a review, the proceedings must be deemed to have been terminated by the final order convicting the relators of contempt and pronouncing upon them the judgment of fine and imprisonment. The warrant which follows is analogous to the execution issued upon an ordinary judgment. Here the appeal is from the process issued to enforce it. As the writs were quashed upon the sole ground that they would not lie until the warrants had been issued, we need not now consider any other point. The question whether certiorari is the proper remedy may therefore be properly reserved until the hearing before us upon the writs.

The order quashing the writs should be reversed and the writs reinstated.

Free access — add to your briefcase to read the full text and ask questions with AI

Barrett, J. —

The writs of certiorari were quashed below upon a misunderstanding of what was decided in The People agt. Peabody (5 Abb., 194), and Devlin agt. Platt (11 Abb., 398). These cases undoubtedly support the familiar rule that the writ does not lie until the proceedings are terminated. But the precise question now involved did not arise. Here the final judgment has been pronounced, formulated, signed and entered of record. ¡Nothing whatever remains to be done. We think that for the purposes of a review, the proceedings must be deemed to have been terminated by the final order convicting the relators of contempt and pronouncing upon them the judgment of fine and imprisonment. The warrant which follows is analogous to the execution issued upon an ordinary judgment. Here the appeal is from the process issued to enforce it. As the writs were quashed upon the sole ground that they would not lie until the warrants had been issued, we need not now consider any other point. The question whether certiorari is the proper remedy may therefore be properly reserved until the hearing before us upon the writs.

The order quashing the writs should be reversed and the writs reinstated.

Cite This Page — Counsel Stack

Bluebook (online)

59 How. Pr. 417, 29 N.Y. Sup. Ct. 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-gilmore-v-donohue-nysupct-1880.