Stevens v. Ottawa Probate Judge

Per Curiam. This court issued a writ of certiorari, directed to the judge of the circuit court for the county of Ottawa, to review the action of the circuit court in refusing to issue the writ of mandamus to the judge of probate of said county. The writ was served upon the clerk of the circuit court. He declined to make a return for the reason that, in his opinion, it was the duty of the circuit 510 judge to make the return, as the writ was directed to him. The relator then made a motion in this court for an order directing the clerk to make the return. Meanwhile the writ was sent to the circuit judge, who has made a return, returning all the records and proceedings specified in the petition for the writ of certiorari, and also other proceedings, and has incorporated in it denials of certain matters alleged in the relator’s petition, and has incorporated other documents which he returns were submitted to him, and were considered in his decision denying the writ of mandamus. The relator then made another motion in this court moving to strike the return from the files. Inasmuch as the relator now has before the court all the papers and proceedings which he asked for, the question of whether the writ should be served upon the clerk of the court or upon the circuit judge is purely academic. We may say, however, that, where a question arises as to what was submitted to the court for its consideration upon the hearing, the circuit judge is the only party who has authority to determine that question. The clerk cannot do it. He could only certify to the files and records in his custody. In this case, therefore, we think the circuit judge is the proper party to make the return. The court now has the entire record before it. If the circuit judge has returned immaterial matters, they will be excluded upon the hearing. The assertions or denials of, or conclusions reached by, the circuit judge based upon the evidence are not an essential part of the return, and will not be considered except so far as they are based upon the record. We therefore see no occasion to determine under what conditions a writ of certiorari should be served upon the clerk and when upon the circuit judge. Neither do we think it essential now to examine this extremely large record to determine whether any portion of the return should be stricken from the files. All these questions can be taken care of when the case is heard upon the merits. The motions are therefore denied.