57 Vt. 398 | Vt. | 1885
The opinion of the court was delivered by
This is a petition addressed to the Supreme Court praying that a writ of certiorari, mandamus, or other appropriate w'rit, may issue, directed to the municipal court of Bennington, commanding that court to certify to the Supreme Court the files, proceedings, minutes, records, and purported records of that court, in the cause in which the said Meagher was prosecuted before said court on the complaint of the State’s attorney and the said Healey became recognized with Meagher for his appearance in court, in order that they may be inspected in the suit now pending in this court, brought upon said recognizance.
The State’s attorney moved to dismiss the petition for the reason that it was not brought within one year from the rendition of the judgment rendered in the County Court in
Section 18 of No. 203 of the Acts'of 1880, establishing the municipal court in and for the village of Bennington, provides that the clerk of that court shall furnish to any person, on demand and tender of legal fees, certified copies of any of the records, proceedings, or minutes of said court, under the seal thereof. The act is mandatory, and the duty of the clerk is clearly defined. It is alleged in the petition and not denied, that the legal fees for the copies desired were tendered to the clerk, and that he refused to furnish them. The proper process for compelling the furnishing of such copies, we think, is a writ of mandamus. The duty of the clerk to furnish them is ministerial, and where it is by statute made the duty of an officer to perform a duty that is purely ministerial, the writ of mandamus will issue to compel its performance. High Ex. Rem. ss. 240, 241, 242, 243. There being no statute of limitations which bars the right to prefer a petition for such a writ, the motion to dismiss is overruled.
The writ is a discretionary one. Here, the procuring of the records for the inspection and consideration of the court was indispensably necessary to the defence of the suit State v. Meagher and Healey; hence the discretion of the court should be exercised in favor of its issuance; and if there was any apparent necessity for making an order that such a writ should issue, we should make it. But the
It is claimed that the recognizance which was entered into by Meagher and Healey was not legal and enforceable, because it appears by the copies of record that there was no such prosecution pending at the time it was entered into as justified the municipal judge in requiring or taking it. It appears that the complaint upon which Meagher was arrested and to answer which he and Healey became. recognized for his appearance, was presented by the state’s attorney to the municipal judge on the 11th day of April, 1882, and said judge on the same day issued a warrant upon the same, on which Meagher was arrested on the 29th day of June, 1882, at which time, the judge being absent, the cause was continued by the clerk of said court until the 25th day of July, 1882, a period of three weeks an d five days. The power of the clerk to continue causes on account of the absence of the judge, is conferred by the 15th section of the act ex-eating the court; axid it is expressly stated in that sectioxx that he shall continue the saxne for a period not exceeding three weeks. The continuance by him for a longer period, therefore, opex-ated as a discontinuance of the cause and the coxitinuaxxces exitered by the judge after the one entered by the clerk on the 29th of Juxxe did not have the effect of reviving or keeping it in life.
There is nothing ixx the recox-d texxdixxg to show that Meagher waived his right to claim that the proceeding was discoxxtinued; but on the coxxti-ary it appears that upon all occasions when he had opportunity he ixisisted that there
It would seem that the idea of holding him responsible on account of what transpired before the 15th of November, 1882, was abandoned, for on that day a new warrant was issued by the municipal judge, commanding his arrest to answer to the complaint that was exhibited on the 11th day of April, to answer to which he had once before been arrested, and the whole proceeding, as we have seen, discontinued. It was while Meagher was under arrest on this last warrant that the recognizance of Meagher and Healey was entered into; and the question is presented as to the right of the judge to attach a second warrant to that complaint and cause the arrest of Meagher. If he had no such right, the arrest was unlawful, and he had no such jurisdiction over the party as justified him in requiring a recognizance to be entered into; and if one was entered into, it was voidable, if not void.
While a discontinuance of a cause is not, in general, a bar to a new suit or prosecution for the same matter, it is not allowable to use the proceeding which has been discontinued, or any part thereof, upon which to predicate such new suit or prosecution. The legal effect of a discontinuance is to bar the party from the use of such proceeding-in any subsequent attempt to enforce the same claim or right.
In Bryant v. Pember & Smith, 43 Vt. 599, it was said, that where a justice of the peace had continued a suit for more than thirty days, it was continued out of court; that the defendant was absolved from all obligation to appear further in the cause; and that any judgment thereafter rendered in it would have been of no force or validity; arid in Crawford v. Cheeney, 12 Vt. 567, that where a suit had been so discontinued, no after proceedings could legally be had.
The cause in which the judgment was rendered by the municipal judge was the cause which had been discontin
The judgment of the County Court is reversed, and judgment rendered for the defendants.
