Hopkins, Allen & Co. v. Suddeth

By the Court. Starnes, J. delivering the opinion. [1.] We are of opinion that the application for a certiorari in this case, should not have been dismissed, for the reason, that the Court had ordered the same to issue at a previous term, and that (as shown by the record) it was no fault of the-plaintiff in error, that it had not so issued ; the petition having been mislaid by the opposite Counsel, and the issuing of' the writ so prevented. We incline to think, too, that the original proceeding was not irregular; that the second original attachment was properly issued by the Justice of the Peace in Baker County. We find no positive provision of the law requiring the Clerk. [520] to do this, though it is the practice, in some places. It is also> the inclination of our minds, that it was not necessary for a, bond and affidavit to be sent to Lee County. But perhaps-these questions should be left open for consideration, when. the certiorari brings them up; and we leave them free, to be^ discussed at that time, if it should be desired. Let the judgment be reversed.