Overman v. Manly Drive Co.

• Decision Date: 08 March 1909
• Citation: 77 N.J.L. 290,71 A. 1125
• Parties: OVERMAN et al. v. MANLY DRIVE CO.
• Court: New Jersey Supreme Court

71 A. 1125

77 N.J.L. 290

OVERMAN et al.

v. MANLY DRIVE CO.

Supreme Court of New Jersey.

March 8, 1909.

(Syllabus by the Court.)

Certiorari by Albert H. Overman and others against the Manly Drive Company. Dismissed.

Argued November term, 1908, before SWAYZE, J.

Charles H. Hartshorne, for prosecutors.

Abel R. Corbin, for defendants.

SWAYZE, J. The only precedent I have been able to find for a writ of certiorari in a case of this character is Stephany v. Liberty Cut Glass Works, recently decided by this court, and reported in GO Atl. 967. In view of that decision, it was proper for me to allow this writ to review a resolution of a board of directors of a private corporation removing the prosecutor from the office of secretary. That case seems to have been undefended, and the question as to the propriety of the remedy could not have been called to the attention of the court. In the present case the proceedings are challenged by the defendant, and I am confronted with the necessity of deciding the question.

The text-books do not seem to recognize the use of certiorari for this purpose. Thompson, after calling attention to the use of that writ to review the action of public municipal boards (the italics are his), says: "It should be added that no precedent has come to the attention of the writer for the use of the writ of certiorari for the purpose of reviewing the proceedings of the judicatories of strictly private corporations or societies in removing their officers or expelling their members." Thompson on Corporations, § 825.

Cook refers to the use of mandamus and quo warranto in such cases, but says nothing of the use of certiorari. Cook on Corporations, § 617.

In our own state, liberal as we have been in the use of this writ, we have frequently had occasion to call attention to the circumscribed character of its use even in the case of public municipal corporations, and it seems to be now settled that certiorari is not the proper remedy where the office is already filled. Its use in the case of private corporations seems to have been limited to acts of the private corporation which were judicial in character. Thus in Elder v. Medical Society of Hudson County, 35 N. J. Law, 200, proceedings to punish the prosecutor for unprofessional conduct as a physician were reviewed, but this was upon the ground that the society was a special statutory tribunal whose adjudication might affect the prosecutor's rights, and the writ of certiorari in that...