Green v. Heritage

• Decision Date: 18 June 1900
• Parties: GREEN et al. v. HERITAGE et al.
• Court: New Jersey Supreme Court

46 A. 634

64 N.J.L. 567

GREEN et al.

v. HERITAGE et al.

Court of Errors and Appeals of New Jersey.

June 18, 1900.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by Charles W. Green, administrator of R. A. Green, and others, against Susan E. Heritage and others. Judgment for plaintiffs was affirmed by the district court, and on appeal to the supreme court defendants bring certiorari. Reversed.

McEwan & McEwan, for plaintiffs in error. W. L. Clark, for defendants in error.

VAN SYCKEL, J.This is an action on contract, instituted in the district court of the city of Jersey City, where judgment was rendered for the plaintiffs in October, 1898. To review this judgment the defendant took what is termed in the district court act of 1898 "an appeal" to the circuit court of the county of Hudson. That act provides "that if either party in any such action or proceeding shall be dissatisfied with the determination or direction of said court in point of law, or upon the admission or rejection of evidence, such parties may appeal from the same to the circuit court of the county wherein said district court is held." P. L. 1898, p. 630, § 206. Section 210 of the same act provides that "on hearing of said appeal, said circuit court shall either affirm or reverse said judgment of the district court, or may order judgment to be entered for either party, as the case may be, and may make such order with reference to the dismissal and costs of the said appeal as said court may think proper." The last-mentioned section was amended by the act of March 24, 1899, but the amendment in no wise affects the question involved in this case. P. L. 1899, p. 560, 8 14. The circuit court affirmed the judgment of the district court, and thereupon the defendants sued out a writ of error to the supreme court, where the judgment of the circuit court was affirmed. This judgment of the supreme court is now in this court for review, and the only question to be discussed is whether the legislature can confer upon circuit courts power to review the Judgment of district courts in matters of law which may be reviewed by the supreme court by a writ of certiorari.

There can be no question that, although the proceedings by which the judgment of the district court was removed into the circuit court is styled in the district court act of 1898 "an appeal," the power conferred is identical with that which is exercised by the supreme court through its prerogative writ of certiorari. The power granted is the certiorari power, and must be dealt with as such, McCullough v. Circuit Court, 59 N. J. Law, 103, 34 Atl. 1072. The question now presented was most ably and elaborately discussed by the late Chief Justice Beasley as long ago as 1865 in Dufford v. Decue. 31 N. J. Law, 302, and the conclusion reached has never been challenged, and, I am confident, cannot be successfully controverted. After showing that prior to the adoption of the constitution of 1844 our supreme court was empowered to have cognizance of pleas civil, criminal, and mixed, as fully and amply to all intents and purposes whatsoever as the courts of queen's bench, common pleas, and exchequer within her majesty's kingdom of England, he says "that at the time of the formation of the constitution of 1844, the ordinary common-law original jurisdiction of the supreme court was shared by the respective county circuit courts, and to a definite extent by the courts of common pleas; but the appellate and extraordinary jurisdiction with which the supreme court, as the successor of the king's bench, had been originally vested, remained centered still exclusively in that tribunal, with the single anomaly that the act constituting the circuit court had conferred upon them the power to review suits originating in the justice's courts by the instrumentality of the writ of certiorari." After declaring that no change in this respect was effected by the constitution of 1844, he further says that: "It was never supposed that either the common pleas or the county circuits were possessed of any more than a concurrent common-law jurisdiction with the supreme court within the limits of their respective counties in the ordinary line of actions inter partes. It is certain that no greater power than this was ever claimed for them. In a defined measure they each shared, practically, with the supreme court, a portion of its ordinary jurisdiction, and this was all; for, so far as is known, no attempt was ever made to bring before either of those tribunals any matter which was not embraced within the limit of this power. Indeed, the express authorization of the circuit court to use, in an enumerated class of cases, the writ of certiorari (that is, certiorari to justice's courts), excludes in a very conclusive manner all claim to the exercise of analogous prerogatives, and likewise evinces that the several terms conferring authority upon those courts did not...