Cunningham v. La Crosse & Saint Paul Packet Co.

By the Court — McMillan, J. — The statute regulating the removal of causes from Justices’ Courts by certiorari, provides that “The party applying for such certiorari, his agent or attorney, shall within twenty days after the rendition of such judgment, present to a Judge of a court of record an affidavit stating that in his belief there is reasonable cause for granting such certiorari for error in such judgment, (setting- forth the ground of error alleged,) and that the application is made in good faith and not for the purpose of delay,” &c. Comp. Stat., page 515, Sec. 124. The statute further provides, “If such Judge shall be satisfied [302] that any error affecting the merits of the controversy lias been committed by the Justice or Jury in the proceeding, verdict or judgment, he shall allow a writ of certiorari by endorsing on the affidavit his allowance thereof. Comp. Stat., page 516, Sec. 126. The presentation of the affidavit, provided for in the section first cited, within the time limited, is an essential requisite to the authority of the Judge to allow the writ of certiorari. Bunday vs. Dunbar, 5 Minn., 444. The statute prescribes what the affidavit shall contain, and a substantial compliance therewith is as necessary as that the affidavit be presented within the twenty days limited by the statute. There are three substantive matters required in the affidavit. First, a statement that in the belief of the party applying for the writ there is reasonable cause for granting such certiorari for error in the judgment. Second, the grounds of error alleged must be set forth. Third, a statement that the application is made in good faith and not for the purpose of delay. As this proceeding is regulated entirely by the statute, we have no authority to regard either of these requisitions as matter of form, but must consider them all as matters of substance and equally essential. In this instance there is a total omission of the statement that the application is made in good faith and' not for the purpose of delay. The affidavit, therefore, was substantially defective, and the Judge had no authority to make an order allowing the writ. As the defect is one of substance, and goes to the jurisdiction of the Judge to allow the writ, we do not think the affidavit was amendable. The statute of New York under which the decisions referred to by the counsel for the appellant were made, required only that “The party intending to apply for such certiorari shall make or cause to be made an affidavit setting forth the substance of the testimony and proceedings before the Justice, and the grounds upon which an allegation of error is founded. 2 Rev. Stat., 255. “It is well settled,” says Savage, Ch. J., considering this section, “that no supplemental affidavit affecting the merits can be regu [303] larly presented after the twenty days (the time limited by the statute) have expired.” The People vs. Albany, C. P., 12 Wend., 264. And in the cases cited by the counsel for the appellant, the supplemental affidavits were regarded as explanatory of collateral facts, and not as supplying substantial defects in the original affidavit, which, the same authorities concur in saying, cannot be done. We are therefore of opinion that the amendment was properly-refused. The order of the Court below is affirmed.