Sawyer v. Wood

18 Wend. 331

• Court: New York Supreme Court
• Decided: November 15, 1836
• Status: Published

Opinion

By the Court,

Cowen, J.

The statute cited is, that the clerk shall make return of the certiorari, annexing certain papers; the supreme court may compel a return; and “upon the same being made,” the like proceedings shall be had as if the cause had been commenced in that court, beginning where the proceedings ended in the court below. “ Upon the same being made,” means regularly made. It is of the nature of process that it cannot be returned so as to take effect previous to the return day. (Smith v. Bush, 2 Wendell, 279.) In this respect the statute has made no alteration. The statute cited relative to a certiorari to a justice from the common pleas, requires the justice to return within ten‘’days after the writ is served on him, (§ 177;) and § 180 authorizes immediate proceedings on the return being made. This depends on the peculiar provisions of the statute, which has thus expressly altered the effect of the process. It requires a return before the return day, if that lie beyond the ten days. Such a proceeding is anomalous. I remember no other case like it by statute or at common law. Motion granted.