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32-33 Writ of Certiorari

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CHAPTER 32-33WRIT OF CERTIORARI32-33-01. When and by whom writ of certiorari granted. A writ of certiorari shall begranted by the supreme court or district court when an officer, board, tribunal, or inferior court<br>has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may<br>be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and<br>adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent<br>miscarriage of justice.32-33-02. How application made. The application must be made on affidavit by theparty beneficially interested, and the court may require a notice of the application to be given to<br>the adverse party, or may grant an order to show cause why it should not be allowed, or may<br>grant the writ without notice.32-33-03. To whom directed. The writ may be directed to the inferior court, tribunal,board, or officer, or to any other person having the custody of the records or proceedings to be<br>certified.32-33-04. Requisites of writ. The writ of certiorari shall command the party to whom itis directed to certify fully to the court issuing the writ, at a specified time and place, and to annex<br>to the writ a transcript of the record and proceedings, describing or referring to them with<br>convenient certainty, and a statement of other matter specified in and required by the writ, that<br>the same may be reviewed by the court, and requiring the party in the meantime to desist from<br>further proceedings in the matter to be reviewed.32-33-05. To officer whose term has expired. A writ of certiorari may be issued to anda return to a writ of certiorari may be made by an officer whose term of office has expired. Such<br>an officer may be punished for a failure to make a return to the writ as required thereby, or to<br>make a further return as required by an order for that purpose.32-33-06. Stay of proceedings. If a stay of proceedings is not intended, the wordsrequiring the stay must be omitted from the writ. These words may be inserted or omitted in the<br>sound discretion of the court, but if omitted, the power of the inferior court or officer is not<br>suspended nor the proceedings stayed.32-33-07. Other proofs permitted if officer dies or return incomplete. If the officer orother person whose duty it is to make a return dies, absconds, or moves from the state, or<br>becomes insane after the writ is issued and before making a return, or after making an<br>insufficient return, and it appears that there is no other officer or person from whom a sufficient<br>return can be procured by means of a new writ, the court in its discretion may permit affidavits or<br>other written proofs relative to the matters not sufficiently returned to be produced and may hear<br>the case accordingly. The court also in its discretion may permit either party to produce affidavits<br>or other written proofs relative to any alleged error of fact or any other question of fact which is<br>essential to the jurisdiction of the body or officer to make the determination to be reviewed, when<br>the facts in relation thereto are not stated sufficiently in the return and the court is satisfied that<br>they cannot be made to appear by means of an order for a further return.32-33-08. How served. The writ must be served in the same manner as a summons ina civil action except when otherwise expressly directed by the court.32-33-09. Extent of review. Except as otherwise provided by law, the review upon awrit of certiorari cannot be extended further than to determine whether the inferior court, tribunal,<br>board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.32-33-10. Return of writ and hearing. If the return to the writ is defective, the courtmay order a further return to be made. Any record made by the inferior court, officer, board, or<br>tribunal may be impeached by the return to the writ, or in the cases mentioned in sectionPage No. 132-33-07, by affidavits or other written proof. Upon the final hearing the court must hear the<br>parties, or such of them as may attend for that purpose, and thereupon may give judgment either<br>affirming, annulling, or modifying the proceedings below.32-33-11. Judgment sent below. A copy of the judgment signed by the clerk must betransmitted to the inferior court, tribunal, board, or officer having custody of the record or<br>proceedings certified.32-33-12. Judgment roll. A copy of the judgment signed by the clerk, entered upon orattached to the writ and return, constitutes the judgment roll.Page No. 2Document Outlinechapter 32-33 writ of certiorari