Monroe v. Reynells

Hooker, C. J. The defendant in an action before a justice of the peace attempted to review an adverse judgment on certiorari in the circuit court, but on motion of the plaintiff the circuit judge dismissed the writ, and the defendant has appealed. The ground upon which the cii’cuit judge acted is not disclosed. There are, however, reasons mentioned in the appellee’s brief, which are said to justify his action: 1. The affidavit and bond were presented to a circuit court commissioner of another county than that of the justice, and the writ was allowed and the bond was approved by him. 2. The writ of certiorari was made in duplicate by the circuit court clerk, one copy being served on the justice, and one being filed in the clerk’s office. 3. In making return, the justice failed to send to the county clerk the writ and bond served upon him. He subsequently sent them upon receipt of a letter from counsel. Upon the hearing of the motion to dismiss, the court permitted a further return to be made, which was done. This return states that he returned the bond, and no question seems to be made over the genuineness of any of the papers. We think that the allowance was valid. It was within the express terms of the statute (1 Comp. Laws, § 937), and within the ruling in the case of Loder v. Littlefield, 39 Mich. 374, though in that case the writ issued from this court. The mere fact that the writ first prepared was filed with [261] the clerk, and the copy issued, should not invalidate these proceedings. They were prepared simultaneously, both signed and sealed. The writ issued became the original writ when it was issued. Before the motion to dismiss was decided, there seems to have been a full return, and the court had jurisdiction to hear the case. The order is reversed, with costs. Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.