Del., L. & W. R. Co. v. Neville

• Decision Date: 17 May 1889
• Parties: DELAWARE, L. & W. R. Co. v. NEVILLE.
• Court: New Jersey Supreme Court

17 A. 836

51 N.J.L. 332

DELAWARE, L. & W. R. Co.

v. NEVILLE.

Court of Errors and Appeals of New Jersey.

May 17, 1889.

Error to circuit court, Hudson county.

On motion to strike out assignment of errors.

Bedle, Muirhead & McGee, for plaintiff in error. McCarter, Williamson & McCarter, for defendant in error.

DIXON, J. This cause was instituted in the Hudson circuit court, where a verdict was obtained by the plaintiff. Thereupon the circuit court allowed the defendant a rule to show cause why the verdict should not be set aside and a new trial granted, and the circuit judge certified that rule, and the case prepared under it, to the supreme court for its opinion, whether the rule should be discharged or made absolute. The supreme court certified to the circuit that the rule should be discharged, and accordingly the circuit discharged the rule and rendered judgment on the verdict. The defendant issued a writ of error from this court to the circuit, and has assigned errors on the opinion of the supreme court. The plaintiff below moves to strike out these assignments.

First, the general question is raised whether in any case errors can be assigned upon the opinion of the supreme court, advising the circuit to refuse a new trial. Clearly enough, if the circuit should for itself decide to refuse a new trial, no errors could be assigned on the decision; for, no matter whether questions of law were involved or not, the writ of error would bring up nothing by which the questions would be disclosed. Neither the decision, nor the state of the case on which it was rendered, would form part of the record, and at common law the record only was reviewable on error. But the matter now in hand is, I think, governed by section 249 of the practice act, (Revision, p. 887,) which enacts that "where judgment shall be rendered by any circuit court in conformity to the certified opinion of the supreme court, upon a case certified, and a writ of error shall be brought to reverse such judgment, such certified opinion shall be returned with the writ of error, as part of the record, and errors may be assigned thereon; and, if error be found therein, the judgment may be reversed therefor." This statute was originally passed as section 86 of "An act to simplify the pleadings and practice in courts of law," approved March 17, 1855, (Nixon, Dig. p. 745,) and was evidently designed to apply to the cases arising under section 6 of "An act to facilitate the administration of justice," passed February 14, 1838, (Elmer, Dig. p. 543.) This earlier statute first gave to the circuit courts original jurisdiction in common-law actions, and jurisdiction by certiorari over suits originating in the courts for the trial of small causes; and section 6 enacted "that the judge or judges holding any such circuit court shall and may, at his or their discretion, and upon such terms as he or they may think reasonable, direct any case of doubt or difficulty to be made and stated, and certified by him or them, to be argued at the bar of the supreme court, which court shall hear the same, and, after opinion given therein, shall certify the same to the said circuit court, which court shall render judgment therein in conformity to such opinion." The fact that section 86 of the act of 1855 was intended to meet the cases under section 6 of the act of 1838 becomes perfectly manifest on noting how exactly the forms of expression adopted in the later act coincide with those employed in the earlier one. It so appeared to the revisers of 1874, who placed these two sections and a kindred rule of the supreme court (Nixon, Dig. p. 1081, par. 36) in juxtaposition, as sections 247, 248, and 249 of the practice act, under the title "Case Certified." If, then, a rule to show cause why a new trial should not be granted, certified by the circuit to the supreme court for its opinion, constitutes a case under the act of 1838, the conclusion follows that, on a writ of error, brought to review a judgment rendered by the circuit court in conformity with the opinion of the supreme court on such case, that opinion is to be treated as part of the record, and errors may be assigned upon it under the statute of 1855. That such a rule to show cause is a case under the act of 1838 seems indisputable. It was so expressly declared by the supreme court in the very earliest cases after the passage of that act. Thus, in November term, 1840, Whitaker v. Turnbull, 18 N. J. Law, 172, was a case certified by the Essex circuit to the supreme court for its opinion whether a rule to show cause why the verdict should not be set aside ought to be made absolute, or whether it ought to be discharged and final judgment be entered for the plaintiff; and this was called a case certified pursuant to the sixth section above quoted. The same thing is true...