Defiance Fruit Co. v. Fox

• Decision Date: 15 June 1908
• Parties: DEFIANCE FRUIT CO. v. FOX.
• Court: New Jersey Supreme Court

70 A. 460

76 N.J.L. 482

DEFIANCE FRUIT CO.

v. FOX.

Court of Errors and Appeals of New Jersey.

June 15, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Defiance Fruit Company against Thomas C. Fox. Judgment for defendant, and plaintiff brings error. Affirmed.

George J. Bergen and John W. Westcott, for plaintiff in error.

Henry S, Alvord, for defendant in error.

PITNEY, Ch. The record brought up by this writ of error discloses that two separate actions of tort were brought by the Defiance Fruit Company, now plaintiff in error, against Fox, the defendant in error, in the Supreme Court. In one action the venue was laid in the county of Cumberland, and the declaration averred that the plaintiff was lawfully possessed of certain lands situate in that county, near to a certain stream of water, and that the defendant wrongfully raised a certain dam in the stream, and thereby flooded the lands of the plaintiff with backwater. In the other action the venue was laid in the county of Salem, and the declaration averred that the plaintiff was possessed of certain lands in that county, near to a certain stream of water, and that the defendant wrongfully placed and raised a certain dam across this stream, and thereby flooded the lastmentioned lands of the plaintiff with backwater. So far as appears from the face of the declarations, the actions were based upon separate and distinct injuries to separate and distinct tracts of land; and, since the causes of action were local, the venue in each action was properly laid in the county wherein the respective lands were alleged to be situate. From the record it further appears that upon motion of the defendant, it being made to appear to the court that the two suits were founded upon the same cause of action, it was ordered that they be consolidated, by discontinuing the action in which the venue was laid in Salem county, and continuing that in which the venue was laid in Cumberland county, in the same manner, in all respects, as if the declaration were couched in proper language to cover the damage to the plaintiff: in both of said counties, and with leave to amend the declaration if necessary. No amendment, however, was made. The defendant pleaded the general issue, and the consolidated suit was brought on for trial before a circuit court judge in the county of Cumberland, and resulted in a verdict in favor of the defendant, upon which judgment was entered.

All this appears by the strict record of the judgment, and by the same record it appears that the order consolidating the actions was made by Mr. Justice Trenchard for the Supreme Court. There is also a bill of exceptions, sealed by Justice Trenchard, to his ruling consolidating the actions. Error having been assigned upon the order of consolidation, the first question stirred upon the argument in this court was whether Ml. Justice Trenchard was, under the circumstances, disqualified from sitting. The Constitution, art. C, § 2, par. 6, speaking of this court, provides that: "When a writ of error shall be brought no justice who has given a judicial opinion in the cause in favor of or against any error complained of, shall sit as a member, or have a voice on the hearing, or for its affirmance or reversal; but the reasons for such opinion shall be assigned to the court in writing." Since in the making of the order for consolidation Mr. Justice Trenchard sat and acted for the Supreme Court, and allowed the bill of exceptions, it is plain that he has, within the meaning of the Constitution, given a judicial opinion in the cause in favor of the alleged error complained of. He is therefore disqualified from sitting in this court, if the alleged error is in its nature reviewable.

In many, if not in most cases, the question whether actions should be consolidated rests in the discretion of the court. But in the present case the effect of consolidation was, with respect to one of the two actions, to change the venue. By section 202 of our practice act (P. L. 1903, p. 560) the change of venue, in transitory actions, is left to the discretion of the court. But by section 201 it is provided that "every local action shall be tried in the county where the lands in question are situate or the cause of action arose," except where there is a trial at the bar of the Supreme Court. An action for nuisance to lands by overflowing them with backwater is local, and must be tried in the county where the lands lie or the cause of action arose. Deacon v. Shreve, 23 N. J. Law, 204. As pointed out by Mr. Justice Dixon in Hill v. Nelson, 70 N. J. Law, 376, 378, 57 Atl. 411: "Originally the pleader was required to state truly the place where each fact asserted by him occurred, and if issue was joined thereon, the fact was tried by a jury summoned from that neighborhood or venue. Afterwards, when jurors were no longer expected to decide issues of fact upon their own knowledge, a fictitious venue was, in some actions, permitted, and the pleader assigned to his facts, under a videlicet, the place in which he desired the trial to be held. These actions were then styled 'transitory.' But this Action was not allowed when the cause of action was so related to a certain piece of land that it must have arisen on or near the land. Actions for such causes were styled 'local,' and triable only in the vicinity where the land lay." He proceeded to show that this rule is of such substantial force in the common law that, if a local cause of action arise outside of the realm, the law courts have no jurisdiction over it. This decision was approved and followed by this court in Doherty v. Catskill Cement Co., 72 N. J. Law, 315, 65 Atl. 508. Our Legislature, so far from changing this rule of the common law respecting local actions, has perpetuated it by distinct enactment. The right of the plaintiff to have an action of this character tried in the county where the lands are situate, or the cause of action arose, is a substantial right, of which he may not lawfully be deprived by the court. Assuming, therefore, that the plaintiff herein had two separate causes of action, arising in different counties, and affecting lands situate in different counties, as was averred in its several declarations, the Supreme Court erred in making an order for consolidating the actions, the necessary effect of which was to require the plaintiff to go to trial before a jury of the county of Cumberland, upon that action which arose in Salem county, and affected lands therein situate.

If, therefore, the error assigned in this behalf is not reviewable by this court, it must be either because the error is not sufficiently manifested by the record and bill of exceptions, or because it arose otherwise than according to the course of the common law. Of course, the judgment that eventuated in favor of the defendant is according to the course of the common law, and the question is whether an alleged error that entered into this judgment, the error arising in the exercise of the equitable power of the court in a matter not resting in discretion, taints the resulting common-law judgment. According to the English practice, a writ of error lay "where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution of a suit, in a court of record. * * * And it is said that, whenever a new jurisdiction is erected by act of Parliament, and the court or judge that exercise this jurisdiction act as a court or judge of record, according to the course of the common law, a writ of error lies on their judgments; but, when they act in a summary way, or in a new course different from the common law, there a writ of error lies not, but a certiorari. To amend errors in a court not of record, a writ of false judgment is the proper remedy." 2 Tidd's Prac. (3d Am. from 9th London Ed.) 1134. But in this state, and notably in this court, from an early period this limitation of the common-law writ of error has been, to some extent, departed from, in favor of a more liberal review, and by a long line of cases it has become with us established law that the writ of error is not confined to the review of proceedings in the course of the common law, but extends to decisions rendered in the exercise of the equitable powers of a court of law, or in the course of its statutory or summary jurisdiction, provided they result in a final disposition of the matter, and have not rested in the discretion of the court.

In Woodruff v. Chapin, 23 N. J. Law, 555, after elaborate argument by able counsel, this court held, in an opinion by Chief Justioe Green, that an order made by the Supreme Court, settling the priority among executions against the same defendant, and ordering one to be satisfied out of the proceeds of sale in preference to others, was reviewable on writ of error. The subject was again exhaustively reviewed by this court in Eames v. Stiles, 31 N. J. Law, 490, where there was a motion to dismiss a writ of error, brought to review a decision of the circuit court denying a motion to set aside an award of arbitrators, and in an opinion by Chief Justice Beasley, citing many cases, it was laid down that a writ of error will lie in all cases where the decision of the inferior court is final, and has not proceeded from a matter resting in discretion. In Ennis v. Eden Mills Paper Co., 65 N. J. Law, 577, 48 Atl. 610, this court reviewed an order of the circuit court refusing to open and set aside a mechanic's lien judgment. In Stratford v. Mallory, 70 N. J. Law, 294, 58 Atl. 347, we reviewed a decision of the Supreme Court, rendered upon a summary investigation of an election of directors of a corporation. In these cases final decisions that were not according to the course of the common law were held reviewable. It results, a fortiori, that a final judgment, rendered in the course of the common law, may be reversed if it result from an erroneous decision of an interlocutory matter...