Brown & Wright v. Smith & Leonard

Lumpkin, J. By the Court. delivering the opinion. The petition for certiorari in the case was sworn to and filed the 12th of November 1857. The writ of certiorari was issued by the Clerk on the 13th and service acknowledged on the 15thof the same month. The Justices of the Peace whose judgment was complained of, were commanded to certify and send up their proceedings, to the the May Term, 1858, of the Superior Court of Calhoun county. . The only question for our opinion is, could the Judge of the Superior Court hear and determine the case, before the Term to which it was properly made returnable by law ? See Cobb, 529. We think not, and feel constrained to reverse his judgment on that ground. To decide otherwise, would be in effect to hold that a certiorari like an injunction may be heard at any time after it issues, a most inconvenient practice to establish even for the Judges themselves. We fully concur with the Court below, that there were no errors complained of in the certiorari, and that it ought to be dismissed on that account, whenever according to law it can be reached. Judgment reversed.