Elsas v. Clay

Jackson, Chief-Justice. This was a case where the error complained of was the refusal of the judge to sanction the certiorari; and a motion to dismiss the bill of exceptions was made on the ground that the petition for certiorari 'wa.s not before this court. Whether here or not turns on the point whether the clerk could certify to the paper sent up as that petition, and that depends on the other question, was that petition, until granted, a part of the record ? It was no part of the record, and therefore the clerk could not certify it to this court; and as the judge does not tell us anywhere that the paper is the petition he had before him, we cannot tell whether he erred or not in not granting that petition which was before him. The writ of error is dismissed, therefore, for the reason that there is no authentication by the proper officer, the judge, that the paper sent up by the clerk is the petition for certiorari, which he refused to grant, the clerk’s certificate not being sufficient to identify it, as it had not become and was not a part of the record. Writ of error dismissed.