Feeney v. Rueger

• Decision Date: 08 November 1894
• Citation: 31 A. 217,57 N.J.L. 356
• Parties: FEENEY v. RUEGER.
• Court: New Jersey Supreme Court

31 A. 217

57 N.J.L. 356

FEENEY

v. RUEGER.

Supreme Court of New Jersey.

Nov. 8, 1894.

(Syllabus by the Court.)

Certiorari to court of common pleas, Essex county; Kirkpatrick, O'Gorman, and Ledwith, Judges.

Action by Ellen Feeney against John Rueger. A judgment was rendered for defendant on appeal from the district court, and plaintiff prosecutes certiorari. Reversed.

Argued June term, 1894, before GARRISON and MAGIE, JJ.

Howard W. Hayes, for prosecutor.

Frank E. Bradner, for defendant.

MAGIE, J. It appears by the record returned that prosecutrix obtained a judgment against defendant in the First district court of the city of Newark, and that defendant took an appeal therefrom, which was perfected by the approval and filing of an appeal bond on February 24, 1892. On December 14, 1892, the common pleas ordered on the appeal for trial. Prosecutrix moved to dismiss the appeal for want of prosecution, and the motion was denied. For failure to move the case, prosecutrix was then nonsuited. The judgment of the district court was reversed, and the record remitted to that court, to the end that a judgment of nonsuit should be there entered. Prosecutrix contends that the common pleas erred in the ruling and judgment above stated.

The appeal having been taken on February 24, 1892, the act approved March 24, 1892 (Laws 1892, p. 257), did not apply to it. The power of the common pleas to deal with the appeal must depend on the laws applicable at the time it was taken. Prior to 1888, the appeal to the common pleas from a district court was wholly upon matters of law, and no power existed in the appellate court to retry the case. Dale v. See, 51 N. J. Law, 378, 18 Atl. 306, and cases cited. Questions arising on appeal were presented by a state of the case agreed on by the parties, or, in case of their disagreement, settled by the district judge. Failure of the parties to agree cast upon the appellant the duty to have the case settled by the judge, and, if he failed to present an agreed case, or to apply to the judge for a settlement of the case, it was ground for dismissal of his appeal. Loftus v. Board, 43 N. J. Law, 357. By an act approved February 11, 1888 (Laws 1888, p. 24), it was enacted that whenever, upon any such appeal, the district judge should fail for any reason "to settle and sign the case as required by law" within three months from judgment, the common pleas should try the case de novo. In the case before us it is obvious that the common pleas considered that it had power to try de novo the case presented by the appeal, and nonsuited prosecutrix, because she did not present evidence, and proceed with the trial. The record shows no state of the case agreed on by the parties or settled by the district judge. In the absence of other proof, it would be presumed that appellant had either not applied to the other party to agree on a case, or, having sought an agreement unsuccessfully, had not applied to the judge to settle a case; for upon such an application the presumption would...