Meads v. Belt Copper Mines

Grant, J. (after stating the facts). Several objections are made to the allowance of this writ. We need to determine but one. Relator having demurred to the petition of the parties to appear and defend the suit, he has admitted all the allegations in the petition to be true. The petition expressly states that Mr. Goodell has acquired title to the lands by virtue of the mortgage sale; that the condition of the company is such as to prevent any appearance upon its part, or the interposition of any defense; and that there is a just and meritorious defense to the action. If the purchaser of the land cannot appear, no defense to the action can be interposed. We are not prepared to say that a purchaser at a foreclosure sale, even before the right of redemption by bona fide creditors has expired, should not be allowed to appear and defend an action brought against the mortgagor. It may be true, under the authorities cited by relator, that the purchaser might resort to a suit in chancery. It is, however, unnecessary to decide that question. The writ of certiorari is not one of right, but one that is addressed to the sound [459] discretion of tbe court. It should not be used to defeat justice. If the relator has an honest claim, he need not fear the result. If his claim is not founded in justice, this writ should not be interposed to assist him. No injustice can be accomplished by the interposition of the purchaser of the land, who is as much entitled to it as is the relator. The judgment will protect the legal rights of all. Besides, this is an interlocutory order. It is not a final. judgment. Quaere : Is it such an order that the writ of certiorari may be invoked to review it ? The motion is granted, and the writ dismissed. The other Justices concurred.