Richardson v. Smith

• Decision Date: 26 November 1906
• Citation: 65 A. 162,74 N.J.L. 111
• Parties: RICHARDSON et al. v. SMITH.
• Court: New Jersey Supreme Court

65 A. 162

74 N.J.L. 111

RICHARDSON et al.

v. SMITH.

Supreme Court of New Jersey.

Nov. 26, 1906.

(Syllabus by the Court.)

Certiorari to Small Cause Court.

Action by Marie A. Richardson and Merritt Leach against Vine H. Smith. Judgment for plaintiffs, and defendant brings certiorari. Reversed.

Argued June term, 1906, before HENDRICKSON, PITNEY, and TRENCHARD, JJ.

Vine H. Smith, pro se. James Steen, for respondents.

PITNEY, J. This writ of certiorari was tested March 31, 1906, and the allocatur was indorsed thereon and signed by a justice of this court on the same day. The return day was the first Tuesday of May then next, being more than 20 days from the date of the allocatur. A motion to dismiss is now made on the ground that the writ is in violation of rule 60 of this court. That rule prescribes that "all writs of certiorari shall be made returnable in twenty days from the date of the allocatur, unless otherwise ordered." In our opinion the order indorsed upon the writ, to the effect that the writ is allowed and that it shall be sealed, is an order sanctioning the return day as mentioned in the writ. It may be added that the purpose of the rule, in prescribing a short return, is to prevent the writ from being used as a means of delay, and to forward the prompt disposition of the matter. In the present case the respondents have not been prejudiced by the extension of the return beyond the 20 days. For these reasons, the motion to dismiss is denied.

The writ brings under review a judgment recovered against the prosecutor in a small cause court Reversal is prayed on the ground that the prosecutor was a citizen and resident of the state of New York, and, when served with the summons, was in attendance in this state as plaintiff and witness in a proceeding for dispossession under the landlord and tenant act brought by him against the present respondents, and that he was served before he had opportunity to return to New York after the conclusion of the dispossess proceedings. These facts are clearly proven. It is shown by the justice's return to the present writ, and by proofs aliunde (taken pursuant to rule 54), that, upon the return day mentioned in the summons, the prosecutor claimed his privilege on the ground mentioned; that he did not subsequently waive the objection; and that the justice who sat in the small cause court overruled the objection on the ground that summary proceedings to procure a warrant of removal in a landlord and tenant case were not judicial proceedings of such a character as entitled a party therein to be privileged from service of a summons. It is now insisted that the remedy of the prosecutor was by appeal, and not by certiorari. Section 93 of the revised "act constituting courts for the trial of small causes" (P. L. 1903, p. 279), is as follows: "Where the small cause court has jurisdiction, no judgment from which an appeal is given by this act shall be removed into the supreme or circuit court by certiorari or otherwise for the correction of any supposed error therein; but the party thinking himself aggrieved shall have relief by appeal only, and that both as to matter of law and matter of fact" By section 80 (P. L. 1903, p. 276) an appeal is given to the court of common pleas from any judgment obtained in the small cause court except such as shall have been given by confession. Similar provisions were in the old act (Gen. St p. 1882, § 96; p. 1891, §138). In order to exclude the review by certiorari the small cause court must have not merely jurisdiction over the subject-matter, but jurisdiction of the particular cause, including jurisdiction over the person of the defendant. Ritter v. Kunkle, 39 N. J. Law, 259, 263; Williamson v. Middlesex Common Pleas, 42 N. J. Law, 386, 396; City of Bridgeton v. Pierce (N. J.) 64 Atl. 693; Barclay v. Brabston, 49 N. J. Law, 629, 9 Atl. 769; Steinlein v. Folwell, 53 N. J. Law, 176, 20 Atl. 1079. Clearly, the small cause court had jurisdiction of the controversy that was raised concerning its jurisdiction over the person of the prosecutor. But, if it erroneously determined that controversy, and illegally upheld its jurisdiction over his person, such illegal determination could not give to it jurisdiction over the cause within the meaning of section 93 of the small cause court act so as to deprive the injured party of his review by certiorari. In Barclay v. Brabston, 49 N. J. Law, 629, 9 Atl. 769, where the justice's judgment was rendered on a day when he had no jurisdiction of the cause, it was held that, for such an error, the defendant below had a choice of remedies—by appeal for a new trial, or by certiorari for a mere legal review—and that, having elected to appeal to the common pleas, he must there proceed to trial on the merits, and could not question the legality of the procedure in the court below. In Steinlein v. Folwell, 53 N. J. Law, 176, 20 Atl. 1079, it was held that, where the court for the trial of small causes has no jurisdiction over the subject-matter of the action, relief may be had by certiorari or by appeal, but that, where the cause of action is within the jurisdiction of the small cause court, and there is lack of jurisdiction over the party by reason of irregular adjournments, the taking of an appeal operates as a waiver of this irregularity, that the proper mode of taking advantage of it is by certiorari. In Vandervoort v. Fleming, 68 N. J. Law, 507, 53 Atl. 225, where the justice of the peace, at the time h...