Young v. Kelsey

9 N.W. 453, 46 Mich. 414, 1881 Mich. LEXIS 601

• Court: Michigan Supreme Court
• Decided: June 29, 1881
• Status: Published

Opinion

Campbell, J.

Gertiora/ri having been brought in the circuit court for the county of Shiawassee upon a judgment rendered by the recorder of Corunna, acting as a justice of fhe peace, the circuit court dismissed it as returnable on Sunday. Plaintiff in certiora/ri brings error.

The writ was clearly irregular, but it is claimed the court should have allowed an amendment. It appears, however, from the return, which we must assume to be correct, that the certiorari was never allowed by any one. The writ is never a matter of right, and can only issue upon satisfying the ■circuit court commissioner, or circuit judge, that there has been an error committed. Comp. L. § 5166. And the court in deciding finally on certiorari in such cases is bound to disregard all defects not affecting the merits. § 5171.

This being the case the party could have gained nothing by an amendment if allowed; and we need not consider whether or not such an amendment could be regarded as ■one which the court could in a certiorari case be bound to grant, or whether if so, this is a proper method of objecting to the refusal.

The judgment must be affirmed with costs.

The other Justices concurred.