Robson v. Nye

By the Oourt, Whiton, C. J. The Revised Statutes provide {chap. 88, § 218), that writs of certiorari shall be served within ten days after their allowance, upon the justice by whom the judgment was rendered. The writ in this case was not served within the ten days mentioned in the statute, and the question is, whether, as the justice in fact made his return to the writ, the Circuit Court did not become possessed of the case so as to make it to go on and decide it on its merits. We are of opinion that the decision of the court was correct. It is contended by the counsel for the plaintiff in error, that the clause of the statute above referred to, is directory merely, and that if the justice does not in fact make return to the writ, the court which issued it, becomes as fully possessed of the case as though the service was within the time fixed by the statute. In other words, that the provision of the statute in question, is intended for the convenience and benefit of the justice merely. But we think, that as the statute (Bev. Siat. chap. 88, § 213) provides for removing judgments which'have been rendered by justices of the peace to the County Court by a writ of certiorari, only by a compliance with the mode pointed out in the statute» and as the statute provides that the writ shall be served upon the justice within ten days after its allowance, it is essential that the service should be made within the time specified. It is as necessary to compty with this requirement/as any other contained in the statute. Clark vs. Bowers, 2 Wis. Rep. 128. The judgment of the court below must, therefore, be affirmed.