Holler v. Sandford Ross

• Decision Date: 11 November 1901
• Parties: HOLLER v. SANDFORD ROSS.
• Court: New Jersey Supreme Court

50 A. 342

67 N.J.L. 60

HOLLER

v. SANDFORD ROSS.

Supreme Court of New Jersey.

Nov. 11, 1901.

(Syllabus by the Court.)

Case certified from circuit court, Hudson county, for advisory opinion.

Action by John Holler against P. Sandford Ross, incorporated. Verdict for plaintiff, and case certified.

Argued July term, 1901, before DEPUE, C. J., and DIXON, GARRISON, and COLLINS, JJ.

Alexander C. Young, for plaintiff.

Flavel McGee, for defendant.

COLLINS, J. The plaintiff recovered a verdict for personal injuries inflicted by the defendant's servant, a watchman. A rule to show cause why the verdict should not be set aside and a new trial granted was entered, reserving the defendant's exceptions, among which were an exception to refusal to nonsuit, and an exception to refusal to direct a verdict for the defendant, which involved all the evidence in the cause. The following questions are certified for our advisory opinion, namely: "First, whether the question as to the act of the watchman, if proven, being within the scope of his authority, was, under the testimony in this cause, a fact for the jury, or a matter of law for the court; second, whether the verdict of the jury was contrary to the charge of the judge at the trial; third, whether the verdict of the jury was contrary to the weight of evidence; fourth, whether the verdict of the jury was contrary to law; fifth, whether the damages found by the jury were excessive; sixth, whether the verdict should be set aside and new trial granted."

In the case of Ashurst v. Railroad Co. (N. J. Sup.) 48 Atl. 999, it was decided that, on a rule to show cause why a new trial should not be granted of an issue joined in this court and tried at the circuit, if exceptions are reserved in the rule this court will not consider any question that is embraced within the exceptions. It follows that in a like situation of a circuit court issue such questions cannot be certified to this court for its advisory opinion, and, indeed, that the circuit court itself cannot consider such questions, for the practice settled in this court must prevail in the circuit courts. Section 299 of the practice act (2 Gen. St. p. 2582) provides "that the justices of the supreme court shall and may adopt uniform rules of practice in all matters not regulated by law for the government of the circuit courts, and the same from time to time alter, repeal and modify as occasion may require." This provision must be held to extend to rules of practice settled in decisions, as well as to those formally promulgated as standing regulations. In the present case the rule to show...