Opinion
December Term, 1805.
A, being administrator of B, is summoned as a garnishee in a case pending in the County Court. He is examined and an issue made up and found against him; he prays an appeal, but does not give bond for the appeal until the next term, in consequence of which the appeal is dismissed. A writ of certiorari will lie to remove the cause to the Superior Court.
THE defendant was summoned as a garnishee in a cause pending in the County Court; he was examined and an issue was made up and tried between him and the plaintiff, and the jury found in favor of the plaintiff at April Term, 1804. The defendant prayed for an appeal to the Superior Court, but did not execute an appeal bond until July term following. The record was transmitted to the Superior Court and the appeal was there dismissed, because the appeal bond had not been executed at the proper time; at the same term in which the appeal was dismissed, the defendant obtained a writ of certiorari to have the record certified to the Superior Court, and upon the return of this writ his counsel moved to have the (95) cause placed on the trial docket, which, being objected to, the cause was sent to this Court upon the question whether the writ of certiorari was the proper remedy in this case.
From Wilmington.
The writ of certiorari is the proper remedy for the defendant in this case, and we concur in the opinion expressed by the judge upon the hearing of this cause in the court below, that the cause should be placed on the trial docket.