Caliopoulos v. Chagaris

• Decision Date: 20 October 1924
• Citation: 126 A. 471
• Parties: CALIOPOULOS et al. v. CHAGARIS et al.
• Court: New Jersey Supreme Court

126 A. 471

CALIOPOULOS et al.

v. CHAGARIS et al.

Supreme Court of New Jersey.

Oct. 20, 1924.

Certiorari to Court of Common Pleas, Hudson County.

Certiorari by James Caliopoulos and others against Peter Chagaris and others to review order of acting judge setting aside verdict of jury as excessive. Certiorari dismissed.

Argued October term, 1924, before KALISCH, BLACK, and CAMPBELL, JJ.

A. A. Melniker, of Bayonne, for prosecutors.

Butler & Butler, of Jersey City, for defendants.

PER CURIAM. The certiorari in this case was allowed to review an order made by an acting judge of the court of common pleas of Hudson county, setting aside a verdict of a jury tried in that court as excessive. The suit was brought to recover damages for an alleged wrongful declaring a chattel mortgage in default, and for attempting to foreclose the mortgage. The case was tried on October 25, 1923. The verdict was for the plaintiff for $2,250. The rule to show cause was allowed October 31, 1923, returnable November 28, 1923. The rule for the new trial was not argued until April 29, 1924. The rule was continued and kept alive, the court said, by consent of counsel. It was decided on May 7, 1924, when a new trial was ordered and the rule made absolute.

We are confronted at the outset in the consideration of this case with the question of jurisdiction. What was said by the Court of Errors and Appeals, in reference to a certiorari issued to the circuit court is pertinent and decisive of this case. The circuit court is, so is the court of common pleas, a constitutional court of record, having general jurisdiction over common-law actions inter partes and proceedings therein according to the course of the common law. As such, its orders are reviewable, not by certiorari, but by writ of error, and only after final judgment. Taylor Provision Co. v. Adams Express Co., 72 N. J. Law, 220, 65 Atl. 508. In that case, it was also said the writ of certiorari should not have been allowed, and after allowance should have been dismissed. So an application for setting aside a verdict and awarding a new trial is always addressed to the judicial discretion of a court, and error cannot be urged against such exercise of that discretion. Furman v. Applegate, 23 N. J. Law, 33. The office of the writ of certiorari in this class of cases is in the nature of that of a writ of error. Therefore its allowance is governed by similar principles. Hoxsey v. City of Paterson, 39 N. J. Law, 493. This also...