Eder v. Hudson County Circuit Court

• Decision Date: 06 March 1928
• Parties: EDER v. HUDSON COUNTY CIRCUIT COURT et al.
• Court: New Jersey Supreme Court

140 A. 883

EDER

v. HUDSON COUNTY CIRCUIT COURT et al.

Supreme Court of New Jersey.

March 6, 1928.

Certiorari by Joseph F. Eder to review orders of the Hudson County Circuit Court, Henry E. Ackerson, Judge thereof, and the District Court of the Second Judicial District of the County of Hudson, Leo S. Carnery, Judge thereof, in an action wherein Joseph F. Eder was plaintiff and Matteo Vangi and another were defendants. Writ dismissed.

Argued May term, 1927, before TRENCHARD, KATZENBACH, and KALISCH, JJ.

Green & Green, of Newark (Harry Green, of Newark, of counsel), for prosecutor.

Francis A. Castellano, Jr., of West New York (Alfonso Bivona, of New York City, of counsel), for defendants.

KALISCH, J. The legal questions presented for solution arise out of an order made by the judge of the Second judicial district court of Hudson county, transferring an action, founded in tort, to the Hudson county circuit court, and an order made by the latter tribunal certifying to the judicial propriety of said removal, and refusing, on motion of counsel of prosecutor, to remand the cause to the court from which it was removed.

This is a convenient place to make the observation that the method, adopted by counsel of prosecutor, to bring the judicial acts complained of, for review here, finds no legal sanction in the decisions of the courts of this state. It is firmly settled that a writ of certiorari does not lie to a circuit court in the exercise of its judicial functions in the course of the common law. And this is even so though the court acts without jurisdictional authority. The remedy is by appeal after judgment. The Constitution declares that only final judgments may be brought by a writ of error into the Supreme Court or Court of Errors and Appeals. That a writ of certiorari will properly go to a supreme or a circuit court judge, where he is invested with a statutory power, the exercise of which is summary, or otherwise, not according to the course of the common law, cannot be successfully gainsaid.

The mere enlargement or extension of the judicial powers of the court does not make the exercise of such powers subject to review, by certiorari. Thus it is seen that it becomes quite important, in order to determine whether the writ properly brings before us the controverted questions, to consider the legislation which conferred on the judge of the district court the power to transfer an action brought in said court to the circuit court. The district court being purely of statutory origin, the Legislature had full power to prescribe the scope of its jurisdiction and authority and how these shall be exercised, of course, keeping in view not to disturb the prerogatives of those courts functioning before and after the adoption of our Constitution.

Why the writ of certiorari was directed to the district court which concededly had sent the record to the circuit court, which record was, at the time of the application for the writ, in the custody of the clerk of the Hudson county circuit court, is without any explanation. For after all the only vital question remaining after stripping the case of inconsequential matters concerns the jurisdiction of the circuit court to hold the case for trial. This must be answered and determined by the judicial action of the circuit court on the record before it.

The record discloses that on November 20, 1920, a collision took place between an automobile of one Angelo Lainpagliona, operated by his servant, Matteo Vangi, and an automobile propelled by the prosecutor Eder. An infant son who was riding with his father, Matteo, was injured in the collision; the injury being a skull fracture. On November 24, 1926, actions were instituted in the Supreme Court, Hudson county circuit, by the owner of the automobile, propelled by Matteo, against Eder, for damages done to the automobile, and by Matteo's son, by next friend, and by Matteo, individually, to recover compensation for damages sustained by them. The plaintiffs were residents of Hudson county, and venue in the actions was laid there. Eder resided in Essex county, and it appears that he was served in the actions on December 1, 1926. On December 4, 1926, Eder brought an action in the Second judicial district court of Hudson county to recover damages from the owner of the automobile and Matteo, his driver, for injury done to his (Eder's) automobile, in the same accident. Matteo filed a counterclaim in the district court action setting forth the personal injuries sustained by him in the accident and also for loss of service, both present and future, of his infant son, as a result of the injuries sustained by the latter, and laid his damages at $4,500.

The counterclaim was verified by Matteo in accordance with the requirement of "An act to amend an act entitled, 'A supplement to an act entitled, "An act concerning district courts (Revision of 1898)," approved March eleventh, one thousand nine hundred and twenty-two.'" P. L. 1925, pp. 341, 342. Section 1 provides for the filing by a defendant in any action brought against him or her in any district court a set-off, counterclaim, discount, or recoupment wherein it shall be made to appear that the amount claimed in such set-off, counterclaim, etc., exceeds "the sum or value limited for the jurisdiction of said court, * * * accompanied by an affidavit of such defendant or his or her duly authorized agent," to the tenor "that he or she verily believes that the amount of such claim, when established by proof, will be greater than the sum or value limited for the jurisdiction of said court, and that said set-off, counterclaim, * * * is filed in good faith and not for the purposes of delay, upon order of the court" the action shall be "transferred with the record thereof, and all papers filed in the cause, for hearing and determination, to the circuit court, * * * the record shall, when necessary, include a transcript of all entries and proceedings; * * * providing, same shall not be transferred unless the judge of the circuit court to which it is intended to transfer said cause, shall, upon due proof, make an order that he finds that there is reasonable cause to believe that the set-off, counterclaim or other defensive action is founded,on fact and that there is reasonable chance for success upon the trial of same by the party who filed said set-off, counterclaim or other defensive action."

It is therefore clear from a plain reading of the statute that it was the legislative intent that, when a situation arose where a defendant had a counterclaim or defensive action against a plaintiff, in which the former claimed recovery for a sum beyond $500, upon this fact being made to appear by affidavit of the defendant or his or her duly authorized agent, upon his or her belief, and, further, that the counterclaim is filed in good faith and not for the purpose of delay, the district court shall transfer the cause to the circuit...