Jefferson County MsArchives Court.....Duggen, Edmund June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

EDMUND DUGGEN vs. JAMES T. McGRUDER

A certiorari is not a writ of right, to be granted as a matter of course, 
without any showing, that the law has been violated, or injustice done.

In England, in prosecutions at the instance of the king, it is the custom to 
issue the writ of certiorari, as a matter of course, on behalf of the crown.

In civil cases, a certiorari should not be granted, where an appeal is given, 
if the objection be not to the want of jurisdiction, nor should it be granted 
pending an appeal.

It does not necessarily follow, because a right of appeal is given, that after 
the expiration of the right of appeal, a certiorari should never be granted.

Whenever the right of individuals are infringed by the acts of persons clothed 
with authority, who exercise it illegally, and to the injury of an individual, 
he may have redress by certiorari, unless he can resort to a writ of error.


OPINION OF THE COURT—By THE HON. POWHATTAN ELLIS.

This case comes up on a bill of exceptions from Jefferson county, and the 
plaintiff by his counsel assigns for error, the following facts:

First, That a certiorari did not lie in cases where another remedy was given 
by statute; and

Secondly, That a writ of certiorari was not a writ of right between citizen 
and citizen, without a shewing to the satisfaction of the judge.

From an examination of the record I find process of summons was issued against 
Edmund Duggen, dated the 7th of March, 1820, returnable before the justice on 
the l3th of the same month, to answer James T. McGruder, in a plea of debt, 
&c. of forty-two do1lars! And the defendant not making his appearance in 
obedience to the summons, judgment by default was rendered against him, which 
was made final. Whereupon the defendant prayed a stay of execution according 
to the provisions of the statute, in such case made and provided, which was 
granted; and the defendant and his security failing to comply with the 
condition of the bond, entered into under the requisitions of the law, 
judgment was given, and execution issued. Whereupon the defendant filed his 
petition, before one of the judges, and procured a writ of certiorari, 
returnable before the superior court of law in and for the county of 
Jefferson, and the cause coming on to be heard at the March term of 1821, the 
counsel of McGruder moved the court to quash the writ of certiorari, because 
it issued erroneously, and to award a precedendo, upon the ground, that a 
certiorari did not lie in cases where another remedy by appeal was given. And 
secondly, that this writ could not be considered by the court as a writ of 
right, emanating as a matter of course, upon the requisition of either party.

"A certiorari, is an original writ issuing out of chancery or the king’s 
bench, directed in the king’s name, to the judges or officers of an inferior 
court, commanding them to return the record of a cause depending before them, 
to the end, the party may have the more sure and speedy justice before him or 
such other justices as he shall assign to determine the cause." 1 Bacon’s 
Abrigt. 559. The court of king’s bench has a superintending power over all the 
inferior courts of criminal jurisdiction, and will in the exercise of its 
power, award a certiorari, and where the prosecution is at the instance of the 
king, they award the writ as a matter of course; because it is his prerogative 
to be heard in any of his courts in the kingdom. The case is somewhat 
different, where the prosecution is nominally at the suit of the crown, but 
really carried on by a private individual.

Here, it is true, upon application the writ would issue as a matter of course, 
but upon good shewing, a procedendo must ba awarded. 1 Bacon’s Abrigt. 559, 
Note C, 4 Burrows 2456.

In civil cases, the judges will not grant this writ when an appeal is given, 
if the objection be not to the want of jurisdiction, but to the merits, for 
that is more properly the subject of appeal; a fortiori, they will not grant 
pending an appeal. But if there is a right of appeal given by statute to both 
parties, limited to take effect in a certain time, and neither of them avail 
themselves of the privilege of appealing, it does not necessarily shut the 
door against the exercise of other rights. We are willing to recognize the 
doctrine; that during the existence of the right of appeal, no certiorari can 
issue, and not afterwards, unless upon a special shewing. Heretofore it has 
been the practice in our state, to let these writs run upon the simple 
suggestion of either party, that there is error in the record of the 
proceedings below. This was neither warranted by the unquestioned law in 
England, or the usages of their court. In this state, we have for several 
years witnessed with anxious solicitude, the delays inseparable from a 
practice, we have adhered to, more for the sake of uniformity, than from a 
conviction of the correctness of the principle recognized. It would be going 
beyond the limits assigned to a court of appellate jurisdiction, to specify 
the particular grounds, upon which a shewing ought to be made, before the 
issuing of the writ. This, from the nature of the powers of the judges, must 
always rest with them, in the exercise of a sound discretion. In the second 
place, from a careful examination of the books, we have not been able to 
discover that this writ can be demanded as a matter of right, unaccompanied by 
such circumstances, as would convince the judge, injustice had been done. 
But "whenever the rights of an individual are infringed, by the acts of 
persons clothed with authority to act, and who exercise that authority 
illegally, and to the injury of an individual, the person injured may have 
redress by certiorari," unless he can resort to his writ of error. 16 Johns. 
Rep., 49. This view of the case has been taken in reference to the law as it 
stood previous to the passage of the late act of assembly, entitled "an act to 
reduce into one the several acts and parts of act, concerning the 
establishment, jurisdiction and powers of the superior courts of law." the 53d 
section of which provides, "No proceedings before a justice of the peace for 
the recovery of any debt or demand, within the jurisdiction of such justice of 
the peace, shall be removed into any circuit court, by appeal, writ of error, 
certiorari, or in any other manner whatever."

Without taking into consideration the law of 1822, we are of opinion, the 
judge below erred in deciding, that a writ of certiorari is a writ of right, 
and to be granted upon application, without circumstances to shew injustice 
had been done.

Judgment of the court below reversed.

Judges HAMPTON and WINSTON concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 112-115.

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