Planters' Lumber Co. v. Griffin Chapel M. E. Church

124 So. 479, 157 Miss. 714, 1929 Miss. LEXIS 368

Opinions

ON APPLICATION FOR WRIT OF CERTIORARI. Waiving the informalities of the application, as for instance that it is not verified or supported by affidavit, 4 C.J., p. 511, 2 Ency. Pl. Pr., pp. 310-311, it shows no other facts than the following: That the final decree was rendered on September 5, 1929; that appeal bond was filed and approved on the same day; and that the transcript has not been filed in this court. It is not shown, for instance, whether the record is to come with or without a stenographic transcript, and since by far the greater number of records do come with the stenographic transcript as a part thereof, we cannot assume that this is an unusual, rather than a usual, case in that respect. Under the law, the official stenographer has sixty days to transcribe his notes, to which fifteen days are added for the examination by counsel on both sides of that transcript, sections 596 and 597, Hemingway's Code 1927; and these periods have not yet elapsed.

When an application is made for a writ of certiorari, all the facts essential to establish the right of the applicant thereto must be shown; and an order therefor can no more be made where a part of the essential facts must be supplied by mere inferences which do not necessarily follow from the other facts stated than can any other order be made by a court upon that kind of an insufficient foundation. The motion is therefore overruled, but without prejudice to a renewal thereof at the proper time and on a proper definite showing of the essential facts.

Motion overruled.