Shapleigh Hardware Co. v. Brumfield

ON THE PETITION FOR WRIT OF CERTIORARI. The petition alleges, in substance, that the petitioner, Shapleigh Hardware Company, sued Brumfield and Connerly in the court below on an indebtedness alleged to be due by them, and, when the case came on to be tried, it recovered nothing, but, on the contrary, a judgment was rendered against it in favor of Brumfield and Connerly on a counterclaim filed by them. The case was then brought to this court by an appeal which is now pending, and the record in the case has been filed in this court. More than six months after the rendition of the judgment this petition was filed, praying for the issuance of a writ of certiorari directing the clerk of the court below to send up the record in the case, and that it be tried and disposed of by this court on the writ of certiorari instead of on the original appeal. The petition sets forth facts, unnecessary here to disclose, which, in the opinion of the petitioner, can be availed of by it more fully in the event the case is tried here on a writ of certiorari instead of on the original appeal.

"The writ of certiorari is used for two purposes: First, as an appellate proceeding for the re-examination of some action of an inferior tribunal; second, as an auxiliary process to enable the court to obtain further information in respect to some matter already before it for adjudication." 11 C.J., p. 89, section 3. It is for the first of these purposes that the writ is here sought; in other words, the effort here is to substitute a writ of certiorari for an ordinary appeal. The Constitution does not provide the procedure for removing cases from a trial court to the supreme court, leaving the procedure therefor to be regulated wholly by the legislature from which it follows that a case can be removed from a trial court to the Supreme Court for review only in the manner provided by a statute. Dismukes v. Stokes,41 Miss. 430; 3 C.J. 299.

Section 32, Code 1906, Hemingway's Code 1927, section 7, provides that "all cases, civil and criminal, at law and in chancery, shall be taken to the Supreme Court by appeal," and other sections of the Code designate the cases in which appeals can be taken and prescribe the method thereof. This method is exclusive of all others. Compare Federal Credit Company v. Zeppernick Grocery Co.,153 Miss. 489, 120 So. 173.

Petition dismissed.