Dunlap v. Toledo, Ann Arbor & Grand Trunk Railway Co.

Campbell, J. In this case, which is a proceeding to condemn lands for a railroad, the original notice was served on a person who was in no way connected with Dunlap, and who had gone on to his premises for the purpose of having service made on him so as to bind Dunlap. The service was clearly illegal and known to be so by the representatives of the railroad who procured his action, and there was no jurisdiction to appoint commissioners of appraisal. The proceedings should not have been confirmed. It is objected that certiorari is an improper remedy, and that resort should have been had to an appeal. While it is true that certiorari should not be favored where any other remedy is adequate, yet it will undoubtedly lie for want of jurisdiction. But in cases involving the interference with important works, the writ ought not to be allowed unless .applied for as soon as practicable. The time for appeal is limited to twenty days, and we shall not feel disposed to sustain a certiorari granted after a longer time, unless under circumstances clearly explaining and accounting for the delay. In the present case it was granted at once and no> want of diligence existed. The proceedings must be quashed as to plaintiff in certiorari with costs of this court and of the proceedings below.. The other Justices concurred.