Carson v. Adamson

This is a rule to show cause why the affidavit upon which the certiorari to the justice of the peace was issued in the instant case should not he amended.

The petition for amendment alleges, and the record shows, that the affidavit averring that the writ of certiorari was not taken for the purpose of delay was taken before a notary public.

*214The Act of March 20, 1810, P. L. 208, sec. 21, 42 PS §951, provides: “That no judge of any court within this commonwealth, shall allow any writ of certiorari to remove the proceeding had in any trial before a Justice of the Peace, until the party applying for such writ, shall declare on oath or affirmation before such judge, that it is not for the purpose of delay”.

By the Act of February 3, 1817, 6 Sm. L. 398, sec. 1, 42 PS §952, the prothonotary of the court of common pleas is likewise authorized to administer this oath. The Act of May 22, 1895, P. L. 100, sec. 1, 42 PS §953, further authorizes the justice of the peace before whom the case in which said certiorari issues is pending to administer this oath.

It is well settled that failure to take the affidavit on the application for certiorari to a justice of the peace before a judge of the court of common pleas, or the prothonotary or the justice to whom the certiorari issues, in accordance with the statutes, is a fatal defect, and that because of such defect the writ will be quashed: Commonwealth, to use, v. Kelly, 20 D. & C. 504; Ristau, to use, v. Crew Levick Co. et al., 17 D. & C. 151; Boden v. Borough of Edgewood, 78 Pitts. 612; New York Central R. R. Co. v. Bright Coal Co., 70 Pitts. 74; Miller v. Trumpore et al., 8 Luz. L. R. Rep. 459.

Where the requirements of the statutes have not been complied with, the court is without jurisdiction to allow the affidavit to be filed nunc pro tunc by amendment of the record: Tiers et al. v. Karpeles, 18 Dist. R. 593; Neely v. Fell, 14 Dist. R. 686.

And now, October 2, 1936, upon consideration of the foregoing case, it is ordered, adjudged and decreed: The rule granted on June 10, 1936, to show cause why the affidavit upon which the writ of certiorari was issued should not be amended as prayed in the petition, is discharged.