
    Patrick et al. v. M’Kernon et al.
    
    After the party has pleaded in nullo est erratum, it is too late to move for a certiorari. The plea is like a demurrer: it admits that the causes assigned exist in the record, but denies that they are sufficient to reverse the judgment.
    On motion for certiorari for a better record, if required, satisfactory proof must be made that the defect exists in a material part, and that it can be corrected.
    MOTION of defendant in error for a certiorari to bring up a more perfect record, which was resisted, 1st. Because the defendant in error had pleaded in nullo est erratum and could not move afterwards. 2d. The plaintiff in error required the defendant to show that the defect existed in a material part, and could be corrected. The counsel produced a letter stating the fact, but could not as an officer of the court state the fact as of his own knowledge.
    
      Hughes, for the motion.
    In this case the counsel has been informed, as will appear by the enclosed letter from C. S. Runnels, Esq. that the record below has been amended by the circuit judge in pursuance of the statute. A certiorari is therefore asked for. See Revised Code, 125, sec. 96, 97, 98.
    IV. Yerger, contra.
    
    1. It is too late after joinder in error to apply for a certiorari. 2 Sanders’ R. 101, n. Rule 6th of this court. It is true the court is not estopped from awarding the certiorari ex officio, by the act of the party. But the court will not do this — where the laches of the party in applying for the certiorari has been of such a nature as to prejudice the other party, should the certiorari be granted. In this case, the great delay in applying for it, will probably cause the suit to be delayed a term, should it be granted, to the great detriment of the plaintiff in error.
    2. The court will not award a certiorari in any case, unless they are satisfied that there is some defect in the transcript before them, the amendment of which is necessary to the rights of the party and the justice of the cause. In the case at bar, it is alledged that the certiorari is made necessary by reason of the judge on the circuit having made an amendment in the record, by virtue of the act of assembly in such cases provided. This court will not award, a certiorari for such a cause, unless the party applying, point out the necessity of it, by affidavit, stating in what the amendment made consists. For it may be that the circuit court made an amendment, which the law did not authorize, and which is therefore void; in which event, no certiorari would be awarded. The amendment which I have heard the court below made, was' clearly without authority and void. Revised Code, p. 125. 4 Howard, S52.
    3. It is too late after the party joins in error, in the High Court, thereby admitting the correctness of the transcript, to apply for a certiorari, on account of an amendment made by the circuit judge in the record, since the joinder in error. It was the duty of the party to have obtained leave from the High Court to delay joining in error, until he could on application have the record amended by the court below.
   Per Curiam.

A motion is made, in this case, for a certiorari to bring up a perfect record, on a suggestion of diminution; which is resisted by the plaintiffs in error, on two grounds: — l. That to the assignment of errors, the defendants in error have pleaded in nullo est erratum ; and 2. That it is not sufficiently shown that the imperfection in the record, if any, can be amended, or that such amendment is material.

By rule of this court, no certiorari will be allowed after assignment of errors, and rejoinder. This is not an arbitrary rule, but it is founded on legal principles. The plea of in motto est erratum is like a demurrer. It admits that the causes assigned for error exist in the record; but insists that they are not sufficient to justify a reversal of the judgment. By taking issue, the party virtually admits that the record is a correct one, and he will not afterwards be heard to say that it is incorrect. If he wished amendments which could be properly made below, he should not have joined in error until they were made; and by motion, the operation of the rule requiring a joinder in error might have been suspended. But here a matter is assigned as error apparent on the record; issue is taken to it, which admits that it does exist, but denies that it is error; and now a certiorari is moved for, in order to show that it does not exist.

We have not generally required absolute proof of the defect of the record, but have usually relied on the statements made by counsel, without further showing. But certainly satisfactory proof must be made, if required, that the record is imperfect in a material matter, and that it can be corrected by certiorari. In this case, the application is resisted, and counsel have insisted that a sufficient showing should be made; and the counsel urging the motion will not undertake to say that the record can be perfected in a material part, but only that he has been informed that it can.

Strictly this is an insufficient showing; and as it is resisted, the motion must be denied.  