Phillips v. Desha

24 S.W. 249, 58 Ark. 250, 1893 Ark. LEXIS 36

• Court: Supreme Court of Arkansas
• Decided: December 2, 1893
• Status: Published

Opinion

Wood, J.

Desha filed his petition for a writ of certiorari to the county clerk; his petition was granted, and an order made that the writ issue. The county clerk, by attorney, James Coates, who also appears upon the record as attorney for petitioner, responded in writing that he had already filed a full and complete transcript of all the record of the Pulaski county court in relation to the removal of Albert Desha in the office of the clerk and numbered “165|.” The transcript thus filed was an exhibit which he had furnished petitioner, and was attached to his petition nearly two months before writ was ordered. Appellant demurred to this response, which was overruled, and appellant, excepting and resting, appealed.

The writ was ordered but not issued. It was not waived, if it could be waived. There was no such record before the court as the law requires upon proceedings by certiorari, and the demurrer to the ..clerk’s response should have been sustained. McKay v. Jones, 30 Ark. 152 ; Marshall v. Ramsauer, id. 532 ; Rightor v. Gray, 23 Ark. 228 ; Derton v. Boyd, 21 Ark. 264 ; Dicus v. Bright, 23 Ark. 107.

Reversed and remanded.