Asher v. Cape

Atkinson, Justice. The specific ground upon which the petition for certiorari was dismissed in the court below was, that the plaintiff in error had not given notice of sanction thereof, as required by law. It appears from the record, that the petition was presented to the judge of the superior court, that it was sanctioned, and the writ of certiorari ordered to be issued on April 22d, 1893 ; that the writ [33] of certiorari issued regularly on the 28th of the same month, that the order sanctioning the issue of the writ was entered upon, and the writ itself attached to, the petition for certiorari; and that thereafter counsel for the defendant in certiorari upon the petition therefor entered and signed the following acknowledgment: “Due and legal service of the within petition for certiorari and certiorari acknowledged; notice of time and place of hearing waived. This May 5th, 1893.” We think this acknowledgment covered notice of the sanction of the writ. The law does not require service either of the petition or the writ upon the defendant in'certiorari, but only that he be notified of the sanction of writ, and of the time and place of hearing. The issue of the writ presupposed the sanction of the judge, and when the defendant, in writing, acknowledged service of the petition, it was equivalent to an admission that he would take due and legal notice of every material fact which appeared therein and of every entry legally appearing thereon. This petition had in fact been formally sanctioned by the judge and his order was entered thereon, so that notice to the defendant of the sanction of certiorari was complete. Of course, if the defendant had declined to take notice or had refused to acknowledge service in writing, the plaintiff' would have been compelled to give him formal notice, but the acknowledgment of service of the petition, which itself conveyed the notice required by statute, took it out of the ordinary rule. In neither of the cases cited in the head-note of this decision does it appear that any action had been taken upon the petition by the judge to whom the same was presented, at the time the notice was given, and in each case the notice was served entirely independent of the petition or writ. So that in neither of those cases could notice of the sanction be presumed. We conclude, therefore, that the court erred in dismissing the [34] petition for certiorari; and a reversal of the judgment complained of is ordered. Judgment reversed.