Bunday v. Dunbar

By the Cowrt. FláNdrau, J. The certiorari was allowed in this case on the 2d day of March, 1860, and not served on the Justice until the 17th day of the same month. ' The Justice made his return to the writ, and among other things certified the time when the writ was served upon him, as required by section 130, chapter 59, Compiled Statutes, on page 516. When the case came on for argument in the District [447] Court, the counsel for tbe Defendant in Erroi^ moved to dismiss the writ on several grounds, among which was, that the writ had not been served upon the Justice within ten days after its allowance, pursuant to section 128, on page 516 of the Compiled Statutes. The Court overruled the motion on this ground, but dismissed the cause upon some other objection which does not clearly appear upon the record. It could not have been upon the single other ground urged by the Defendant in Error, “ that the return of the Justice was made out by attorney,” because that fact does not appear upon the record that I can discover. The counsel for the Plaintiff in Error alleges in his points and written argument, that the Court stated that the motion was granted “ because it did not appear from the record that there was any legal adjournment from the return day of the process to the day of trial.” However that may be can make no difference with the disposition of the case here. The decision of a cause by a court which is correct upon the law governing it, cannot be vitiated by the Judge assigning a wrong reason for it. The motion to dismiss the wilt because it was not served upon the J ustice in time, was well taken, and should have been granted. The statute requires it to be done within ten days after the writ is allowed, and makes it part of the duty of the Justice to certify the day that it was served upon him. This particularity, considered in connection with the nature of the subject, puts it beyond doubt that the statute is not merely directory in its requirement that the writ shall be served within ten days, but makes it an essential step in the removal of the cause. See Heenan vs. Supervisors of Ramsey County, 2d Minn. R., p. 332, where we had occasion to consider what provisions in statutes are directory,, and what are designed as conditions, limitations, or restrictions upon the act enjoined or permitted. If the objection was properly urged in the Court below it should have been granted, and a refusal to grant it there does not prevent the party from again raising it here. When he was overruled in his motion to dismiss, he had a right to discuss the merits and succeed there if he could, aud by so doing he did not waive his preliminary objection. If the Court had decided the case on its merits, and reversed the [448] judgment, tbe Defendant in Error, in tbe certiorari, could .have removed tbe cause to this Court and bad the motion to dismiss reviewed, and tbe writ dismissed ; and tbe fact that tbe other party brings it here, in no way affects bis right to have all questions, properly presented by the record, considered. Tbe Court was right in dismissing tbe writ, and tbe order should be affirmed.