Nathaniel W. Vaughn v. Aaron Marshall

Nathaniel W. Vaughn v. Aaron Marshall. A writ of certiorari is barred after five years, and'will not lie where there is no judgment; and upon these grounds will, on motion, be dismissed. Certiorari to Justice Lolland. The original judgment was entered before Peter Hall, J. P., July 10th, 1830, on which a scire facias was issued by Justice Lolland, on the 26th of March, 1856, and the plaintiff below obtained judgment by default, which was afterwards opened by the justice, on the application of the defendant below, and the parties let into a new trial; but before the case had again proceeded to judgment, the defendant below and plaintiff in the writ sued out the certiorari. The errors assigned were: 1. That the certiorari was barred on the original judgment, having been entered more than five years before it was sued out. 2. That the writ of certiorari was sued out prematurely, and before final judgment in the scire facias, a writ of error not lying where there is no judgment. On which the counsel for the defendant moved the Court to dismiss the writ. [MAJORITY — The Court] The Court sustained the motion on both grounds, and dismissed the certiorari.