Cent. R. Co. of N.J. v. Tunison

• Decision Date: 20 November 1893
• Citation: 55 N.J.L. 561,27 A. 929
• Parties: CENTRAL R. CO. OF NEW JERSEY v. TUNISON et al.
• Court: New Jersey Supreme Court

27 A. 929

55 N.J.L. 561

CENTRAL R. CO. OF NEW JERSEY

v. TUNISON et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1893.

(Syllabus by the Court.)

Error to circuit court, Somerset county; before Justice Magie.

Action by William W. Tunison and Henry T. Beekman against the Central Railroad Company of New Jersey. There was a verdict for plaintiffs, and from an order refusing a new trial, defendant brings error. Affirmed.

Benj. Williamson and Jos. d. Bedle, for plaintiff in error.

Traphagen & Beekman, for defendant in error.

VAN SYCKEL, J. The defendants in error instituted suit in the Somerset county circuit court against the Central Railroad Company, and recovered a verdict against it. After verdict the company was granted a rule to show cause why a new trial should be had. This rule was subsequently discharged, and a new trial refused. A writ of error based on such refusal was sued out by the company under the act of March 4, 1890, (P. L. p. 33,) entitled "An act respecting writs of error." This act expressly grants the right to a review before final judgment for errors either of law or fact. The act of March 25, 1885, (P. L. p. 109,) authorized an appeal from the supreme court or any circuit court directly to the court of errors and appeals, by any person aggrieved by the granting of a new trial or by the refusal to grant a new trial. In Dodd v. Lyon, 49 N. J. Law, 229, 12 Atl. Rep. 542, this court held that the appeal provided by the act of 1885 was in substance a proceeding in error, and that, therefore, the act of 1885 was unconstitutional, because by the third clause of section 5, art. 6, of the state constitution it is declared that no proceeding of the circuit court except a final judgment can be transferred directly to this court by writ of error. The act of 1890 was framed in view of the Infirmity which rendered the act of 1885 abortive, and provided that the party aggrieved by the refusal to grant a new trial in the circuit court should have a remedy by writ of error to the supreme court in this case the writ of error was taken to the supreme court, and the judgment of the supreme court against the company is the subject of controversy in this case. Circuit courts in this state were established by an act passed June 6, 1799. Rev. Laws, p. 453; Griff. Law Reg. p. 1173. The practice and proceedings in the supreme court were extended to the circuit court by Laws 1838, p. 64, § 13; Rev. St. p. 203, pl. 12. Section 1, art. 10, of the constitution provides that "the several courts of law and equity, except as therein otherwise provided, shall continue with the like powers and jurisdiction as if the constitution had not been adopted." Section 1, art. 6, of the constitution provides "that the judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore; a court for the trial of impeachments; a court of chancery; a prerogative court; a supreme court; circuit courts and such inferior courts as now exist, and as may...