Hamilton v. Spiers

Schaeefee, C. J., delivered the opinion of the court: A writ of certiorari was issued out of the Third District Court on the 12th day of September, 1877, on the petition of respondent, and was duly served on the appellant as justice of the peace; but it was not served on John Wayman, the plaintiff, in whose favor the judgment complained of was had. In obedience to the said writ, the said justice, on the 17th day of September, 1877, appeared in the said district court, and there hied-a certified copy of the record and proceedings in the justice court in the cause in controversy. The complaint was simply an account as follows, to-wit: Salt Lake CouNTy, — July, 1877. A. N. HAMILTON, De.: To John Wayman, Eoad Supervisor for District No. 2, Salt [228] Lake County, in the sum of three dollars ($3.00) for road poll tas for the current year. On the summons the cause was entitled as follows, to-wit: John Wayman, Road Supervisor, plaintiff v. A. N. Hamilton, defendant. The summons commanded the defendant to appear and answer the complaint of the above named plaintiff, etc. In the justice’s court a motion was made to quash the summons by the defendant’s attorney, for the reasons that it did not appear in what capacity the plaintiff sued, and that the summons did not properly identify the plaintiff as the road supervisor of any road district. The motion to quash the summons was overruled, and a judgment was rendered in favor of the plaintiff and against the defendant for three dollars and costs, and the costs were taxed at seven dollars, making the aggregate of the judgment ten dollars. On the hearing on the certiorari the district court reversed and annulled the said judgment, and ordered the said suit to be dismissed, and the costs thereof were taxed against the defendant in the writ of certiorari. From this judgment this appeal is taken; and, although no errors appear to be formally assigned, yet from appellant’s brief and argument, we learn that he relies upon two alleged errors, to-wit: Hirst — The judgment is wrong because it appears that the justice had jurisdiction, and the writ of certiorari lies only when the inferior court exceeds its jurisdiction. Second — The judgment is wrong in taxing costs against the justice of the peace. Certiorari is a judicial writ issued by a superior to an inferior court, commanding the latter to certify and return to the former the record dfnd proceedings in some cause already terminated, in cases where the procedure is not according to law. The only office which the writ of certiorari performs, is to cause the record of the proceeding to ^e certified from an [229] inferior to a superior tribunal. Nothing outside of the record should be certified. Upon the return of the writ, unless otherwise provided by-statute (which is not the case here), the cause is tried solely upon the record. No trial can be had upon any issue of fact outside the record. The writ is obeyed by certifying and returning the record of the proceedings of the inferior tribunal, or the entries made by it in the nature of a record. When there is, technically, no record, the written proceedings and orders, or a history of the proceedings and the written orders which are in the nature of records, are to be certified. (2 Hill. 9; Green’s Pr. 497; 25 Wend. 16S.) When the return is sufficient, the court will determine upon the record alone, unless a trial de novo is provided for by statute, whether the inferior tribunal had jurisdiction of the parties and of the subject matter, and whether it had exceeded its jurisdiction, or otherwise proceeded in violation of law. In eases where the inferior tribunal has exceeded its jurisdiction, and in cases where it had proceeded illegally, and there is no appeal or other mode of directly reviewing its proceedings, its proceedings may be reviewed on certiorari. 22 Ill. 108. In this case there is nothing in the record that shows that John Wayman sued as road supervisor of any road district whatever. The terms “road supervisor,” and road supervisor for district 2, etc., are merely descriptive of the person, and do not signify that he sued in his character of supervisor, and of course he could not in his personal character sue for a road tax. This may be regarded as a technical error, and it may bé insisted that it should not vitiate the proceedings before a justice of the peace; but it is a vital error, going to the very cause of action, and when it was brought to the notice of the courts by motion to quash the summons, it should have been regarded. The judgment of the district court, in so far as it vacates and annuls the judgment of the justice’s court, should be affirmed. [230] But Way man was not a party to tbe writ of certiorari; neither did he appear in the district court by service of process or otherwise, and as the justice was a party only to certify and return the record of the case, and was not interested in the merits of the cause of action, we think the judgment for costs against him is error, and should be reversed fro tcmto. EhebsoN and BokeMAn, J. J., concurred.