
    M. Combs, Jr., v. J. W. Vogeli.
    Certiorari AND Supersedeas. Pauper oath. Code, see. 3133, forbids the issuance upon an application forma pauperis unless on notice to the adverse party of the application. This section is directory, and the fiat for a supersedeas forma pauperis without notice is not void, but the petition is subject to be dismissed for error in the issuance of the swpersedeas without notice.
    Case cited: Legate v. Ward, 5 Col., 451.
    Code cited: Sec. 3133.
    FROM SHELBY.
    Appeal from the Circuit Court. Irving Halsey, Judge.
    J. B. Robertson for complainant.
    HaNSON & Estes for defendant.
   NicholsON, C. J.,

delivered the opinion of the court.

Combs applied to a Circuit Judge for writs of cer-tiorari and supersedeas to bring into court an execution issued against him by a justice of the peace, in order that the same might be quashed. The ground for quashing it, stated in the petition, was, that the judgment had been paid and satisfied by a co-surety of Combs. The petitioner prayed for supersedeas without bond, but upon his taking the pauper oath. The fiat directed the supersedeas to issue without bond, upon petitioner's taking the pauper oath; but this fiat was made without any notice to the plaintiff in the judgment. During the same term at which the writ of supersedeas issued, plaintiff moved the court to dismiss it, and the motion was sustained. It does not appear upon what ground the motion was sustained. From the judgment of dismissal the petitioner has appealed as a pauper.

The question is, whether the petition for supersedeas was properly dismissed. We suppose it was dismissed because the fiat was made without notice to the plaintiff in the execution, as required in such cases by sec. 3133 of the Code. This section was held to be directory in the case of Legate v. Ward, 5 Col., 451. The fiat for the supersedeas, therefore, was not void, but the petition was subject to be dismissed for error in the issuance of the supersedeas without notice.

The statute forbids the issuance of a supersedeas upon application forma pauperis, unless on notice to the adverse party of the application. The manifest object of the statute is, that when the application is made in forma pauperis the opposite party may have an opportunity to be present and contest the application, by showing that it ought not to be granted except upon bond and security, as in other cases.

But in this case the supersedeas issued without such-notice, and, of consequence, the plaintiff in the execution had the right to appear and move for its dismissal, without thereby waiving his right to have the error in its issuance corrected. As the motion was allowed, we are to presume that it was done for the reason that the writ had issued erroneously, and that the petitioner was not entitled to it upon his pauper oath. In this there was no error, and the judgment, is affirmed.  