Lewis v. Gallup
North Dakota Supreme Court
Appeal from District Court, Cass County; McConnell, J. Certiorari on the petition of R. S. Lewis against R. Gallup, justice of the peace, and O. G. Barnes, sheriff. Writ quashed, and petitioner appeals. Certiorari is the proper remedy. The judgment being rendered as by default it is doubtful whether appellant could have appealed at all. 2 Enc. PI. & Pr. 102; Wiggins v. Henderson, 36 Pac.
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Appeal from District Court, Cass County; McConnell, J. Certiorari on the petition of R. S. Lewis against R. Gallup, justice of the peace, and O. G. Barnes, sheriff. Writ quashed, and petitioner appeals. Certiorari is the proper remedy. The judgment being rendered as by default it is doubtful whether appellant could have appealed at all. 2 Enc. PI. & Pr. 102; Wiggins v. Henderson, 36 Pac. Rep. 459. The appeal or remedy which will prevent the issue of the writ of certiorari must be one which will set aside and annul the void proceeding of which the petitioner complains. Memphis Ry. Co. v.…
1Opinion of the CourtWallin, C. J.
The controlling facts in this record are as follows:
This proceeding was initiated by an affidavit filed in said District Court, couched in the following words and figures:
“State of North Dakota, County of Cass — ss.: H. C. Southard, being first duly sworn, on oath says that on the-day of May, 1894, R. S. Lewis was served with a summons in an action wherein George M. Babcock was plaintiff and said Lewis was defendant, commenced before one R. Gallup, as justice of the peace in and for said county, which summons was returnable May 7th, 1894, at 10 o’clock a. m.; that, upon the return of said…
2Cases cited1 opinion
- Perrott v. OwenSouth Dakota Supreme Court · 1895
3Cited by4 opinions
- State ex rel. Red River Brick Corp. v. District CourtNorth Dakota Supreme Court · 1912
- St. Paul, Minneapolis & Manitoba Railway Co. v. BlakemoreNorth Dakota Supreme Court · 1908
- State ex rel. Brunette v. PollockNorth Dakota Supreme Court · 1916
- Baker v. LenhartNorth Dakota Supreme Court · 1922