Gerdes v. Champion

Citations

• 108 Ill. 137
• 1883 Ill. LEXIS 64

Syllabus

<p>1. Cebtiobaei—at common law—when it lies. The common law writ of certiorari may be awarded to all inferior tribunals and jurisdictions when it appears that they have exceeded the limits of their jurisdiction, or in eases where they have proceeded illegally, and no appeal is allowed, or no other mode is provided for reviewing their proceedings.</p> <p>2. Same—trial on record alone. The court awarding a writ of certiorari where the record is sent up, tries the case on the record alone. The trial is had by an inspection of the record,—not on any issue of fact, but of law, rather, as on a writ of error.</p> <p>3. Same—duty of inferior court on service of the writ. Where the writ is issued and served, it becomes the duty of the inferior court or body to whom it is directed to transmit a full and complete transcript of the record of the proceedings of which complaint is made, properly certified, to the court awarding the writ.</p> <p>i. Same—to test legality of laying out a highway. The commissioners of highways refused to grant the prayer of a petition for the laying out of a highway, and their order was filed in the town clerk’s office, whereupon a. party interested appealed from the decision of the commissioners, by filing, as he claimed, the necessary papers before a justice of the peace. The latter selected and summoned three supervisors to hear the appeal, who made a preliminary order granting the prayer of the petition, and then filed with the justice a certificate, under section 78 of the Boad act of 1879, asking for a jury to assess damages. The justice issued a venire for a jury, and fixed a day for the trial, when a common law writ of eertiorari was served upon him: Held, that the writ could bring nothing before the court except the petition for the appeal, the appeal bond, and the certificate asking for a jury, these being the only papers required to be filed before the justice, and that as no court could decide, from these alone, the legality of the procee