Baldwin v. Goodyear

The statute cited, puts the party either to his appeal or certiorari. Clearly he is not entitled to both, ; . The plaintui in error, supposes that he may bring a certiorari upon the formal error of refusing to adjourn; and have his appeal upon the merits. But whenever an issue is joined, he is confined to bis appeal alone. Here were two successive issues; first on the matter in abatement; and on this being passed upon and overruled, issue was taken and a trial had upon the merits. Both were the proper subject of appeal, and may be reviewed by the Court of Common Pleas. It is only where there is no issue that a certiorari will lie. (a)

Motion granted.