Opinion
Opinion filed February 16, 1936.
Writ of Certiorari — 4 When Available — Not Available after Failure to Bring Exceptions before Supreme Court.
1. Certiorari will not issue where there is another adequate remedy, as by appeal or exceptions.
2. Certiorari will not be granted to permit party to take advantage of exceptions taken in trial below but not brought upon the record when case was passed to Supreme Court.
PETITION to Supreme Court for writ of certiorari to review judgment of Franklin municipal court in prosecution of petitioner for alleged violations of laws relating to lotteries. Heard at the February Term, 1936, Supreme Court, Franklin County. The opinion states the case. See, also, 107 Vt. 529, 181 A. 299. Petition dismissed.
P.C. Warner for the respondent.
John H. Webster, State's attorney, for the State.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This case was originally brought to this Court upon exceptions. At the November Term, 1935, these exceptions were overruled. The case is now here upon a petition for a writ of certiorari, seeking to take advantage of certain exceptions taken in the trial below, which the respondent failed to bring upon the record when the case was formerly here. See 107 Vt. 529, 181 A. 299.
As a general proposition, certiorari will not issue when there is another adequate remedy. It is generally held that it will not issue where there is an adequate remedy by appeal or exceptions. Sowles v. Bailey, 69 Vt. 277, 284, 37 A. 751; Connors v. Ball, 73 Vt. 182, 50 A. 804; Stevens v. Hill et als., 74 Vt. 164, 52 A. 437.
Here there was a plain, adequate and expeditious remedy by a bill of exceptions of which the petitioner availed himself. Under the circumstances of this case, we do not think that the failure of petitioner's attorney properly to prepare the bill of exceptions, so as to bring upon the record the exceptions taken at the trial, affords a sufficient reason to take this case out of the general rule.
Petition denied. Stay vacated.