Talbot v. White, 1 Wis. 444

Talbot v. White

1 Wis. 444 | Wis. | 1853

By the Court,

Crawford, J.

The writ of certiora-ri was issued in this case by the County Court of Rich-land county, without any allowance having been endorsed upon the affidavit by the proper officer, as prescribed by section two hundred and sixteen of chapter eighty-eight of the Revised Statutes. Until this allowance was so endorsed, the clerk had no authority to issue the writ. Any other construction *446than this, would render the salutary provision of the section above referred to, of no effect. It was intended to restrict the use of this writ to cases where, in the opinion of the officer allowing the writ, an error “ affecting the merits of the controversy” had been committed. If this objection to the proceeding had been urged in the County Court, it would have been the duty of that' court to dismiss the case, and we are inclined to the belief that it is equally fatal here. But it is not necessary to express an opinion on that point at present. On the hearing of the case, the County Court permitted a witness who had been examined on the trial before the justice, to be called and sworn, to supply an alleged defect in the return of the justice. This was a palpable error, (17 Johns. R.131,) and is in no way excused by the contempt of the justice in refusing to make a further return, as required by the court. Section twenty-seven of chapter eighty-six, and section two hundred and twenty-one of chapter eighty-eight of the Revised Statutes, gave ample power to the court, not only to compel the justice to amend his return, but also to administer a wholesome punishment for the flagrant contempt, of which he seems to have been guilty.

The judgment of the County Court must be reversed, with costs.