Williams v. Burchinal

Decided July 1, 1840

Superior Court of Delaware · decided 1840-07-01

Mr. Clayton showed as error to the record, that the cause was tried by referees, when the defendant had not appeared; whereas the trial should have been by the justice. {Dig. 334.) Mr. Frame moved to quash the certiorari, because the defendant below had taken an appeal, which was still pending, before he issued his certiorari; and he said that a party could not have both remedies at one lime.

Decided 1840-07-01

¶1By the Court:

Bayard, Chief Justice.

¶2The remedy by appeal is cumulative, on the common law right to the certiorari, and the choice of one is not an abandonment of the other. Doubtless they might be enjoyed one after the other, and the only reason why they should not go on together, is in the accumulation of costs. The court, therefore, would, on it appearing that the party had taken both remedies at once, compel him to elect which he would proceed in, and discontinue his other proceeding at his own costs.

¶3Motion refused, and judgment reversed.