Hosier v. Great Notch Corp...

• Decision Date: 17 August 1945
• Docket Number: No. 23.,23.
• Citation: 43 A.2d 676,133 N.J.L. 197
• Parties: HOSIER et al. v. GREAT NOTCH CORPORATION.
• Court: New Jersey Supreme Court

133 N.J.L. 197

43 A.2d 676

HOSIER et al.

v.GREAT NOTCH CORPORATION.

No. 23.

Supreme Court of New Jersey.

Aug. 17, 1945.

Action in trespass by Elera Hosier and others against Great Notch Corporation, wherein verdict for plaintiffs was, on rule to show cause, set aside and a new trial ordered, 40 A.2d 196, 23 N.J.Misc. 1. On defendant's motion to vacate the rule setting aside the verdict for plaintiffs.

Motion denied.

May term, 1945, before BROGAN, C. J., and PARKER, J.

Peter Hofstra, of Paterson, for plaintiffs.

Cox & Walburg, of Newark (William H. D. Cox, of Newark, of counsel), for defendant.

BROGAN, Chief Justice.

This is a motion to vacate an order making a rule to show cause absolute. The case, an action in trespass in the Supreme Court, was tried before Judge Leyden, a Circuit Court judge, then assigned to Morris County where the venue was laid. After a plaintiffs' verdict defendant was allowed a rule to show cause on the return of which the learned trial judge set aside the jury's verdict in toto and ordered a new trial.

We are asked to vacate the rule setting aside the plaintiff's verdict as an abuse of discretion on the part of the learned trial judge in his appraisal of the weight of evidence; and for the further reason that in determining the matter the court misconceived the pertinent rules of evidence. We observe parenthetically that there is no merit whatever in either point. As a matter of practise the present application is irregular and should be denied on that ground. The proceeding, in essence, amounts to an appeal from the trial judge's disposition of the rule to show cause. As an appellate proceeding it may not be entertained. Farmland Dairies v. Van Tol, 132 N.J.L. 298, 40 A.2d 294; compare Van Hoogenstyn v. D., L. & W. R. R., 90 N.J.L. 189, 100 A. 232.

Under the existing practise, a Circuit Court judge or a judge of Common Pleas has complete power to preside over a Supreme Court Issue which has been referred to him for trial, including the signing of the postea, although he may not enter a judgment. R.S. 2:27-185, N.J.S.A.; compare McConnell v. Alpha Portland Cement Co., 74 N.J.L. 727, 67 A. 346. By the statute, supra, such trial judge may grant and dispose of a rule to show cause and his judgment is as effectual as if rendered by the Supreme Court. R.S. 2:27-189, N.J.S.A. If his disposition of a rule to show cause has the same effect as if handed down by the Supreme Court (as it has by statute, supra), then it follows necessarily that the Supreme Court may not review it by motion to vacate.

Prior to the statute, supra, rules to show cause in a Supreme Court issue were returnable before a branch of the Supreme Court. But since that statute, the allowance of such rules and the determination thereof have been entrusted to judges of the Circuit and Common Pleas Courts in cases that have been referred to them. The case of Key v. Paul, 61 N.J.L. 133, 38 A. 823, upon which the applicant relies, in our view, has no pertinency...