City Bank of Bayonne v. O'Mara

• Decision Date: 06 March 1916
• Citation: City Bank of Bayonne v. O'Mara, 88 N.J.L. 499, 97 A. 149 (N.J. 1916)
• Court: New Jersey Supreme Court
• Parties: CITY BANK OF BAYONNE, PLAINTIFF-APPELLANT, v. JOHN H. O'MARA, DEFENDANT, AND MARY HOCKE, CLAIMANT-RESPONDENT

97 A. 149

88 N.J.Law 499

CITY BANK OF BAYONNE

v. O'MARA et al.

Supreme Court of New Jersey.

March 6, 1916.

(Syllabus by the Court.)

Appeal from Court of Common Pleas, Hudson County.

Action by the City Bank of Bayonne against John H. O'Mara, wherein Marry Hocke claimed the property involved. Verdict for claimant, and plaintiff appeals. Verdict set aside.

Argued November term, 1915, before PARKER, MINTURN, and KALISCH, JJ.

Aaron A. Melniker, of Jersey City, for appellant. Roe, Runyon & Autenrieth, of Jersey City, for respondent.

PARKER, J. The judicial proceeding sought to be reviewed on this appeal is the award of certain chattels to respondent Mary Hocke, on the trial of a statutory claim of property in the common pleas.

We are not aware of any statute or judicial decision in this state sanctioning appeal (corresponding to the common-law writ of error) as a legal method of reviewing this purely statutory proceeding. In Levinson v. Godfrey, 79 N. J. Law, 212, 74 Atl. 278, an appeal from the determination of a claim of property in the district court was considered sub silentio, and no doubt the point raised escaped the attention of the court because not raised by counsel. It is not raised in the case at bar; and, while in view of this fact and of the manifest merit of the appeal we have concluded to overlook the lapse in practice and deal with the case as if brought here on certiorari, we think it important not to pass it over in silence. The point is material, for, if certiorari be the only proper method of review, it follows that frivolous and nonmeritorious attempts to remove the record, which appeal as a matter of right would facilitate, will be cut off by the timely refusal of an allocatur in certiorari.

Taking up the question itself, it is fundamental that certiorari is the only proper method of review of a special statutory proceeding, especially where, as in this case, no statutory review is provided. Even where an appeal is provided by statute, certiorari lies to the determination of the appellate tribunal. Examples of this are cases of bastardy (Dunn v. Overseer, 32 N. J. Law, 275; Ruff v. Kebler, 62 N. J. Law, 186, 40 Atl. 626), nonsupport (Decker v. McLorinan, 42 N. J. Law, 413; O'Shaughnessy v. Same, 43 N. J. Law, 410; McLorinan v. Ryno, 49 N. J. Law, 603, 10 Atl. 189), and summary convictions reviewed by the common pleas judge (Newark v. Kazinski, 86 N. J. Law, 59, 90 Atl. 1016). The test is whether the proceeding is statutory and not according to the course of the common law. Elder v. Medical Society, 35 N. J. Law, 200, and cases cited; Curtis v Steever, 36 N. J. Law, 305, 306; Hisor v. Vandiver, 82 N. J. Law, 304, 82 Atl. 526. With respect to this statutory claim of property, certiorari has been the uniform method of review from an early era in our jurisprudence. Examples of such cases are Baird v. Johnson, 14 N. J. Law, 120 (1833); Obart v. Letson, 17 N. J. Law, 78, 34 Am. Dec. 182 (1839); Berry v. Chamberlain, 53 N. J. Law, 463, 23 Atl. 115; Folwell v. Fuller, 53 N. J. Law, 572, 22 Atl. 345; Kaufhold v. Roth, 74 N. J. Law, 61, 64 Atl. 1057; Gridley v. Decker, 79 N. J. Law, 360, 75 Atl. 452.

Indeed, in Berry v. Chamberlain, supra, a leading case, Chief Justice Beasley lays stress throughout on the purely statutory character of the proceeding (see pages 464, 468, of 53 N. J. Law, 23 Atl. 115), and that resort to it is optional with both parties, and on page 466 of 53 N. J. Law, on page 116 of 23 Atl., remarks that as an incident "the entire affair, so far as the law is concerned, is under the supervision of this court through its prerogative writ of certiorari." And in a recent per curiam citing the Berry Case, the Court of Errors and Appeals has just said that certiorari is the only appropriate remedy in a case of this kind. Reiman v. Wilkinson Gaddis & Co., 96 Atl. 52.

The case of Trimmer v. Bonnell, 65 N. J. Law, 66, 46 Atl. 768, is relied on as authorizing appeal in this class of cases, but is manifestly not on the point, as that case related to a suit according to the course of the common law, and not to a statutory proceeding.

We have dealt with this matter of practice somewhat fully as an intimation to counsel that appeals in cases that should be brought up by certiorari are liable to be dismissed by the court of its own motion, as in Trimmer v. Bonnell, 65 N. J. Law, 66, 46 Atl. 768, and Corbett v. Young Men's Christian Ass'n of Madison, 79 N. J. Law, 126, 74 Atl. 297.

It has been remarked that the merit of the appeal has moved the court to consider it without a dismissal for the faulty practice. The trial was held with a jury and before one of the judges of the common pleas, pursuant to sections 32 and 33 of the Executions Act (2 C. S. 1910, p. 2255). At the conclusion of the evidence the judge directed a verdict for the claimant, and this is attacked on the ground that there was a question of fact for...