(April Term, 1864.)
1. Certiobabi—when it will be atwa/rded. When an application for a writ of ce/rtiora/ri is in due form, and an interpolation of the record is alleged, the practice is to grant the writ, without regard to the materiality of the grounds upon which it is asked.
2. Same—whether the hearing will be delayed thereby. The granting of the writ does not delay the hearing of the cause, without a special order to that effect.
3. Costs—on certiorari. If it appears upon the return to a writ of certiorari, that the application for the writ was frivolous, the party will not be allowed any costs therefor.
*74AlPpeal from the Superior Court of Chicago.
The judgment in the court below, from which this appeal was taken, was entered upon default. It appears that at the time the default was taken, the original summons in the cause had been duly served, and was then exhibited to the court, and lodged among the papers of the case, but was not marked “ filed ” by the clerk until some days after the judgment was entered, when, upon his own motion, the clerk did mark the summons “filed” as of a day prior to the entry of the judgment. And the clerk, in making up the transcript of the record, copied into it the summons, with the filing mark thus indorsed thereon.
The appellant,
at the present term, moved this court to award a writ of certiorari, directing the clerk of the court below to send up a correct transcript of the record and proceedings in the court below; insisting that the clerk of that court had no right to mark the summons “filed” after the judgment by default was entered, as of a day prior to the entry, and therefore the copying of the summons into the transcript was an interpolation of the record.
Messrs. Haines & Story, for the motion.
Messrs. Hosmer & Peck, contra.
Per Curiam:
"While we do not see the pertinency of the grounds of this application yet, as it is made in due form, and an interpolation is alleged, the practice is to grant the writ, without regard to the materiality of the grounds upon which it is asked. The granting of the writ does not delay the hearing of the cause, without a special order to that effect. And if it appears upon the return that the application was frivolous, the party will not be allowed any costs therefor.
Writ of certiorari cmarded.