Dorsey v. Black

Jackson, Judge. A motion was made in the justice’s court to enter up judgment, nuno pro tunc, upon the verdict of a jury rendered in 1864. The justice refused to grant the motion, and the plaintiff, J. W. Black, carried the case by certiorari to the superior court. That court sustained the certiorari, and passed an order for a new trial, and directing the justice to “enter and sign up judgment, nunc pro tunc, for the plaintiff for principal, interest and costs.” The defendant appeals to this court, and assigns for error: first, that the court erred in this, that the statute, in cases where the costs are not paid and bond given, requires the party applying for the writ to swear “ that he is advised,” as well as that he believes he has good cause for certiorari; secondly, that the court erred in this, that he not only granted the new trial but directed the justice to enter and sign up judgment; thirdly, that the verdict was against the defendant, executor, and not as executor. 1. Where a party applies for the writ of certiorari under section 4053 of the Code, the statute prescribes that he shall swear that he “verily believes ” he has good cause for certiorari, and stops there; but where he applies, under section 4056, which is the case here, he is required to- swear, in addition, that “he is advised” that he has such good cause. It would seem that the legislature intended that when the party could not pay the costs and give the security, as in ordinary cases, under section 4053 of the Code, he should get competent advice before delaying the other party. At all events the statute [317] plainly requires that he shall swear that he is so advised, and we cannot alter or annul the provision. 2. In cases where there is no question of fact, the Code provides that the judge of the superior court shall make a final decision in the case, and not send it back and direct the justice to make it. In this case the judge grants the new trial, and yet dictates the decision of the justice of the peace and the judgment he is to sign up. We think this without authority of law and against the statute: Code, section 4067. 3. As to the other error complained of, that the verdict, if there was one, was not against the executor as executor, the little word “as” being left-out, we think in proceedings in the justice’s court no such nicety of pleading or practice is required. On the whole, we think from the record that execution has been long ago issued in this case, perhaps paid off, perhaps dormant; and think that the certiorari should have been dismissed and the judgment of the justice of the peace affirmed; and we so direct. Judgment reversed.