Commonwealth v. M'Allister, 1 Watts 307

Commonwealth v. M'Allister

1 Watts 307 | Pa. | 1833

The opinion of the Court was delivered by

Rogers, J.

An application has been made to quash the certiorari, because, at the time the writ was issued, Archibald M’Allister, the defendant in error, was dead. The Commonwealth resists the motion to quash, and having suggested the death of the defendant in error, *308asks the court for a rule upon John C. M’Allister, the surviving administrator, to appear and plead to the errors assigned, on or before the first day of the next term. A certiorari is a writ, where the court would be certified of a record in another, or sometimes in the same court. And he to whom the certiorari is directed ought to send the same record, or the tenor of it, as commanded by the writ; and if he fail to do so, then an alias is awarded; afterwards a pluries, with a clause of vel causam nobis significas; and then an attachment, if good cause be not returned upon the pluries. When the record is removed either by certiorari or writ of error, the supreme court have power to examine the record upon which judgment was given, and on such examination, to affirm or reverse the same, according to law. The certiorari is a judicial writ, issuing out of the court to which the proceedings are to be removed, and is directed to the judge or officer who has the custody of the record, or other matter to be certified. In this case, the certiorari is directed to the judges of the court of quarter sessions of Dauphin county, commanding them to certify the proceedings had on the application of Archibald M’Allister for damages occasioned by the Pennsylvania canal. The writ is entitled in the name of The Commonwealth v. M’Allister, and in obedience to the writ, the court of quarter sessions have certified the record and process, and have returned the record, together with the writ as they were commanded, and this was the only return the court could make. It was not for them to inquire into the death of Archibald M’Allister, for a return by them of that fact, without the record and process, would have been an insufficient return, which, if persisted in, would have rendered them liable to attachment. Besides, if there were an irregularity in this; yet, we have the record before us, and it is a principle of law well settled, that third persons cannot object to the misdirection of a certiorari, to remove a cause from an inferior court, if the proper officers in whose keeping the record was, waive the objection, and return the record. Daniel v. Phillips, 4 Serg. & Rawle 499. The cause is entitled in the name of the parties on the record, to identify the proceedings which it is intended to remove. It has never been the practice in this state, to serve a copy of the writ on the attorney on the record, as in England ; nor is the writ, as is the case in the supreme court of the United States, accompanied with a citation to the party. The court of review will take care that notice is given, and that the proper parties are put on the record; and this object is attained, on motion, by a rule similar to the rule asked for by the counsel for the commonwealth.

It is ordered by the court, that the rule to quash, &c. be refused, and that the rule to appear and plead, be made absolute.