Dietsch v. Smith

• Decision Date: 17 March 1927
• Docket Number: No. 263.,263.
• Citation: 136 A. 598
• Parties: DIETSCH v. SMITH et al.
• Court: New Jersey Supreme Court

136 A. 598

DIETSCH

v. SMITH et al.

No. 263.

Supreme Court of New Jersey.

March 17, 1927.

Action by Jacob Dietsch against Edward J. Smith and others, trading, etc., as Smith Bros. A judgment for plaintiff was set aside, and a new trial granted, and plaintiff brings certiorari. Orders set aside.

Argued January term. 1927, before PARKER, BLACK, and CAMPBELL, JJ.

Mendelsohn & Mendelsohn, of Paterson, for prosecutor.

Richard Spitz, of Newark, for respondents.

PER CURIAM. On May 5, 1925, prosecutor recovered a judgment in the Paterson district court against the respondents, and on June 26, 1925, execution was issued, and on July 10, 1925, returned unsatisfied. On July 10, 1925, the judgment was docketed in the court of common pleas of the county of Passaic.

On July 24, 1925, the respondents obtained an order requiring the prosecutor to show cause before the district court on August 4, 1925, why the judgment obtained May 5," 1925, should not be opened. On August 7, 1925, the district court by its order set aside the judgment of May 5, 1925, and granted new trial. By another order dated October 7, 1926, the district court vacated its previous order of August 7, 1925, setting aside the judgment and ordering a new trial. On October 22, 1926, the district court granted respondents an order to show cause why its order of October 7, 1926, should not be set aside, and a new trial granted in accordance with its previous order of August 7, 1925. On November 8, 1926, an order was made, setting aside the order of October 7, 1926, and granting a new trial in accordance with the order of August 7, 1925.

The present writ brings up for review these proceedings.

All of the proceedings directed to the setting aside of the judgment and ordering a new trial are clearly in conflict with the provisions of the District Court Act (2 Comp. Stats. 1951) section 17, which is as follows:

"In every case tried in any of said courts the judge may, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceedings, provided that application for such new trial, except where the said application is based upon newly discovered evidence, shall be made within thirty days."

There is nothing in the return to the writ showing that the new trial was ordered upon the ground of newly discovered evidence.

The district court was clearly without jurisdiction, and the orders and proceedings brought up for review are set aside.