Granade v. Wood

By the Court. Jenkins, J. delivering the opinion. The transcript of the record, and the original bill of exceptions in this case, were lost in the course of transmission from the county of Richmond, by mail, to the Clerk of this Court. By consent of counsel, an agreed copy of the latter was substituted for the lost original, and the cause allowed to be tried upon that alone. There were several exceptions taken, affecting the merits of the judgment reviewed on certiorari in the Court below, which this Court found it impossible to adjudicate satisfactorily, in the absence of the transcript of the record. There was, however, one ground [122] fully developed in the bill of exceptions, which' must necessarily have controlled the judgment of this Court, whatever opinion may have been entertained upon a full and clear presentation of the other points. Waiving all others, therefore, we place our judgment upon that one, which we proceed to state. In the conclusion of his argument in the Court below, wherein the merits of the case were discussed, the counsel for the defendant in certiorari, who was also respondent in habeas corpas, moved to dismiss the certiorari, for the reason that no notice was given to the defendant, his agent or attorney, of the granting of the writ of certiorari, or of the time and place of hearing the same, as required by section 3967 of the code. There is no issue of fact here. It is admitted that no notice»was given, but the counsel for the plaintiff in certiorari insisted in the Court below, and in this Court, that the motion came too late — that by appearing and arguing the case upon its merits, the defendant had waived the defect, and could not, at that stage of the proceedings, take advantage of it. The Court below sustained the motion to dismiss; and this is the judgment we are called upon to_ review. That, in legal proceedings, there are certain irregularities which will be considered as waived, unless exception be taken to them before going to trial on the merits, is not denied. But in determining whether or not this rule applies to a particular case, reference must always be had to the law governing it. The 3967th section of the code is as follows: “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also of the time and place of hearing, at least ten days before the sitting of the Court to which the same shall be returnable, and in default of such notice, (unless prevented by unavoidable cause,) the c&rtiorari shall be dismissed.” This is the mandate of the law to the Court, and its terms arc peremptory. There is no discretion left — no room for inquiry, whether [123] the conduct of the defendant was equivalent to a waiver of notice. No cause whatever was assigned for the omission; and whenever, anterior to final judgment, in such a case, that omission is brought to the knowledge of the Court, and a motion made to dismiss the writ, no alternative remains to the Court, without violation of the law. True, the discussion of the merits of the case was irregular, because useless, but that could not dispense with the peremptory mandate of the law — “ the certiorari shall he dismissed.” The judgment of the Court below is affirmed.