Delaware, L. & W. R. Co. v. Nevelle

• Decision Date: 31 March 1889
• Citation: 19 A. 538,51 N.J.L. 332
• Parties: DELAWARE, L. & W. R. Co. v. NEVELLE.
• Court: New Jersey Supreme Court

19 A. 538

51 N.J.L. 332

DELAWARE, L. & W. R. Co.

v. NEVELLE.

Court of Errors and Appeals of New Jersey

March Term, 1889.

Motion to strike out assignments of error.

appearance; and a slab forming a step from the sidewalk was in front of each. The northerly door was intended for purchasers; and a few inches behind the southerly one was a hoist way, covered by a trap-door, leading into a cellar about 12 feet deep. Plaintiff, a purchaser, entered the store by the southerly door,—both doors being closed, but unlocked,—and fell down the hoist way, which had been left open, and received the injuries sued for. Held, that the case was properly submitted to the jury, and a verdict for plaintiff was warranted.

J. D. Bedle, for plaintiff in error. T. N. McCarter, for defendant in error.

BEASLEY, C. J. This was a case tried before a jury in the Hudson circuit court, and, a verdict having gone for the plaintiff, a rule to show cause why a new trial should not be granted was allowed, and was thereupon certified to the supreme court for its advisory opinion. The result of this procedure was that the inferior court was advised to dismiss the rule, with costs. 17 Atl. Rep. 836. From the judgment thus resulting this writ of error has been brought. The motion now to be disposed of is to strike out all the assignments of error, except the merely formal ones, that apply to the record in its strict sense.

The specifications of error thus sought to be eliminated belong to the same class, as, for example, that the court erred in not making the rule to show cause absolute; that it appeared, as a matter of law, from the case certified to the supreme court, that the railroad company was not guilty of negligence, and that the plaintiff was guilty of contributory negligence, etc.

It does not appear that there were any bills of exception taken at the trial, nor any case reserved. Therefore, it is obvious, from this statement of the attitude of the proceedings, that, if the circuit court had itself proceeded to hear and pass upon the motion for a new trial, a writ of error would not have lain to such judicial action, or to any part of it. But it was insisted, on the argument, that such writ to review the procedure is legitimate, by force of the statute that authorizes the circuit court to apply, in cases of doubt or difficulty, to the higher court for its advice. The law referred to has not, we think, so broad a scope as is thus ascribed to it. The provision is contained in ...