
    Elsas vs. Clay.
    A petition for certiorari does not become a part of the records of the superior court until granted. Therefore, if the exception be to the refusal to grant a certiorari, and the petition come up in the record with no other identification than the usual certificate of the clerk, the writ of error will be dismissed.
    Practice in Supreme Court. At September Term, 1881.
    Clay brought an action on account against Elsas, before a justice of the peace, and recovered judgment. Elsas, being dissatisfied, with the judgment, presented his petition for certiorari to the judge of the superior court,, which petition being refused, Elsas excepted, and assigned the same as error. The petition for certiorari does not appear in the bill of exceptions. It is there stated that such a petition was presented on certain grounds, and refused. The record contains what purports to be the petition. It is not identified by the signature of the judge! The clerk in his certificate to the record states that “the foregoing pages contain a true copy of the petition for certiorari, copy account, plea,” etc. On motion the writ of error was dismissed, the court announcing the principles stated in the decision.-
    E. Faw, for plaintiff in error.
    Richard Winn ; George F. Gober, for defendant.
   Jackson, Chief-Justice.

This was a case where the error complained of was the refusal of the judge to sanction the certiorari; and a motion to dismiss the bill of exceptions was made on the ground that the petition for certiorari 'wa.s not before this court. Whether here or not turns on the point whether the clerk could certify to the paper sent up as that petition, and that depends on the other question, was that petition, until granted, a part of the record ? It was no part of the record, and therefore the clerk could not certify it to this court; and as the judge does not tell us anywhere that the paper is the petition he had before him, we cannot tell whether he erred or not in not granting that petition which was before him.

The writ of error is dismissed, therefore, for the reason that there is no authentication by the proper officer, the judge, that the paper sent up by the clerk is the petition for certiorari, which he refused to grant, the clerk’s certificate not being sufficient to identify it, as it had not become and was not a part of the record.

Writ of error dismissed.  