Page:Dakota Territory Reports Vol 4.djvu/322

 Certiorari is the proper remedy to remove a cause for review before judgment, as the remedy by writ of error is after judgment. Commonwealth v. Simpson, 2 Grant (Penn.) Cas. 438.

Certiorari is the proper remedy where no notice has been given to parties before adjudicating on their rights. Commissioner v. Clew, 15 John. 537; Commonwealth v. Chase, 2 Mass. 170; Commonwealth v. Cambridge, 4 Mass. 627; State v. Baring, 8 Me. 137.

Certiorari will lie in summary proceedings, in all cases where a court acts in a summary manner extra judicially, or in a new course different from that authorized by law. Tierney v. Dodge, 9 Minn. 166; Ackermann v. Taylor, 8 N. J. L. 268; Commonwealth v. Ellis, 11 Mass. 466; Bathbridge, etc. Co. v. Magoun, 8 Me. 293; Milwaukee Iron Co. v. Schubel, 29 Wis. 444; Sec. 685 Code Civil Procedure.

The appeal court acquires only such jurisdiction with respect to the matters sought to be reviewed as the inferior court has in the first instance. Wells on Jurisdiction of Courts, Sec. 65; Cooban v. Bryant, 36 Wis. 605; Felk v. Pelk, 19 Wis. 208.

S. L. Claspell and White & Hewitt, for defendant.

The writ of certiorari was improperly granted in the name of the territory. People ex rel. v. County Judge, 40 Cal. 479; High ex. Legal Remedies, Sec. 430; State v. Commissioners, 11 Kan. 66; Hagerty v. Arnold, 13 Kan. 367; State v. Faulkner, 29 Kan. 541; Code Civil Procedure. Chap. 34, Sec. 683, 713; U. P. R. R. Co. V. Hall, 91 U. S. 355.

The question of jurisdiction in this proceeding has been prematurely brought before this court. Le Roux v. Bay Circuit Judge, 8 N. W. 100; Wilson v. Supervisors, 3 Cal. 386.

The supreme court will not issue a writ to remove into that court proceedings pending or undetermined before an inferior court or tribunal. Grinager v. Supervisors, 22 N. W. 174; Lynde v. Noble, 20 Johns. 80; Devlin v. Plate, 20 How. Pr. 167; Haines v. Backus, 4 Wend. 213; People v. Peabody, 26 Barb. 437.