Wright v. Gray

PHELAN, J. The court below dismissed the certiorari, on the motion of the defendant, upon the ground that the petition was defective and insufficient; and this is assigned for error. Upon looking into the petition, we find no cause or excuse set forth, why the plaintiff in error, who was also plaintiff below, did not appeal from the judgment of the justice of the peace against him; and for this reason, the prayer for a cer-tiorari should have been refused. But when a certiorari is awarded, even if it be upon a petition not setting forth such a state of facts as would properly justify its issuance, the Circuit Court, in pursuance of'the plain requirements of the statute, must proceed with the trial ck novo, without regarding the defects in the petition. The case of Casey v. Bryant, (1 Stew. & P. 51) is decisive of this case. Let the judgment be reversed, and the cause remanded.