Moore v. Ernst

Campbell, J., delivered the opinion of the court. The defendant in error was not entitled to the certiorari without “good cause shown by petition, supported by affidavit,” Code 1871, § 1336; but no objection was made to it, and no motion to dismiss it, and “ the parties (in the Circuit Court) announced themselves ready, and proceeded to try said cause,” which was a waiver of all objections to the granting of the writ. Fitzpatrick v. Ray, 4 S. & M. 645. It was erroneous to exclude the plaintiff in error from the suit. He had been admitted as a defendant in place of the original defendant, who had complied with § 656 of the Code of 1871, which applies as well to suits before justices of the peace as to those in Circuit Courts, Code 1871, § 630 ; and to actions for money claimed under contract, express or implied, as to those for the recovery of personal property. Judgment reversed and came remanded.