13 Wend. 130 | Court for the Trial of Impeachments and Correction of Errors | 1834
I have not considered it necessary, to examine this case on the merits, having arrived at the conelusion, that no writ of error to this court lies upon the granting or refusing a mandamus upon a mere motion, where no plea or demurrer to the return has been filed as authorized by the revised statutes relative to writs of mandamus and prohibition. 2 R. S. 586. § 55. The writ of error in the case of The Canal Commissioners, &c. v. The People, ex rel. Tibbits, 5 Wendell, 423, was founded upon a special provision in the act of April, 1827, relative to claims for damages against the state for injuries sustained in the construction of the canals. See 1 R. S. 235, § 97, 98. Previous to the statute of Anne, eh. 20, the application for a mandamus was a summary proceeding, and never assumed the shape of a common law judgment ; but upon the coming in of the return to the alternative mandamus, the court summarily disposed of the case by granting or refusing the motion, without inquiring into the truth of the matters alleged in the return. That statute authorized the relator to plead to or traverse the return; and if he availed himself of this privilege, the case then assumed the regular form of a common law proceeding, upon which a judgment for damages and costs might be given; and upon such a judgment, either party was authorized to sustain a writ of error. The people v. Champion, 16 Johns. R. 65,per Spencer, J. This statute, however, did not abrogate the former mode of proceeding; and the relator, upon the coming in of the return to the alternative mandamus, had his election, either to proceed summarily by motion, or to adopt the more formal mode of proceeding by plea or demurrer, under the statute. It was deliberately settled, in two different causes, which were brought before the house of lords a few years after the passing of the statute of Anne, that if the case was disposed of by a summary application without plea or demurrer, no writ of error could be sustained on such decision. See The Dean and Chapter of Dublin v. The King, 1 Bro. P. C., Tom. ed. 73; Pender v. Herle, 3 id, 505. These two different methods of testingthe validity of areturn to a mandamus
As the writ qf error was improperly brought in this case, the proper course for the defendants in error was to have applied to this court in the first instance to quash the writ, instead of allowing the time of thq court to be wasted in the hearing of the cause upon the merits. As the statute gives costs to the defendants in error upon the discontinuance or quashing, of a writ of error we cannot refuse costs to themin this case • but to prevent the occurrence of such cases hereafter, and to induce parties to take objections of this kind before a joinder in error, I think the costs should be limited to
The court unanimously concurring in the opinion delivered by the chancellor, the writ of error in this case was dismissed, with costs limited according to the above suggestion.