Breunecke v. Denyse

The opinion of the court was delivered by Van Syckel, J.

The writ in this case certifies into this court for review a judgment in attachment in the Court of Small Causes, at the suit of said Denyse against L. F. Breunecke & Company.

*149 Tiie first reason assigned for reversal is that the defendants in attachment tendered an appeal bond to the justice and demanded an appeal in accordance with the provisions of the Attachment act (Gen. Stat., p. 115, pl. 98, 99), and that the appeal was refused because the bond was not tendered and the appeal demanded before the term of the Court of Common Pleas next after the rendition of the judgment.

The plaintiff claims that he had the right to an appeal after that term had passed. If he is right in his contention, which is not conceded, his remedy was not by certiorari to reverse the judgment, but by mandamus to compel the justice to accept the appeal bond and send up the proceedings to the Common Pleas for retrial.

The further reasons for reversal, that it does not appear by the constable’s return that any property was attached; that there was no proof that the attachment was advertised according to law, and that there was no proof of the debt due from the defendants to the plaintiff in attachment, are not supported by the facts as certified in the ease before us.

The return of the constable does show what was attached, and the return of the justice to the order of this court made on the 1st day of June, 1897, shows that due proof was made before him, on which he decided that the attachment was .duly advertised as required by the statute, also that due proof was made before him of the debt due from the defendants to the plaintiff.

The proceedings against the garnishee are not reviewable on this writ; the garnishee is not a party to this suit.

The writ of certiorari should be dismissed, with costs.