State ex rel. Hopper v. Bd. of Chosen Freeholders

Decision Date03 March 1890
Citation19 A. 383,52 N.J.L. 313
PartiesSTATE ex rel. HOPPER et al. v. BOARD OF CHOSEN FREEHOLDERS et al.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

On motion for peremptory mandamus.

Argued at November term, 1889, before VAN SYCKEL, MAGIE, and GARRISON, JJ.

P. W. Stagg, for relators, R. I. Hopper, for respondents.

MAGIE, J. Upon a rule to show cause, and affidavits taken thereunder, an alternative mandamus was issued at the instance of relators, directed to the board of chosen freeholders of the county of Passaic, and that of the county of Bergen, commanding them to "put a certain bridge lying and being across the Passaic river, between the counties of Bergen and Passaic, and commonly known as the' Fifth-Avenue Bridge,' in safe condition for public travel," or to show cause why they had not done so. To this writ the freeholders of Passaic demurred, as they were entititled to do. Fairbank v. Sheridan, 43 N. J. Law, 82. At last term the demurrer was held to be bad. The memorandum of the court's determination shows that it was adjudged that the duty of defendants to repair the bridge, and their neglect and refusal to perform that duty, was sufficiently charged in the writ. Relator's counsel now moves (on notice only to the freeholders of Passaic)First, for final judgment on this determination; second, for leave to issue a peremptory mandamus; and, third, for judgment against the freeholders of Passaic for costs on the demurrer.

Counsel for the freeholders of Passaic concedes the right of relators to judgment on the demurrer, but objects to the issue of a peremptory mandamus. But, if such judgment is final, relators seem entitled to a peremptory writ, which is in the nature of an execution in such proceedings. Rader v. Township of Union, 43 N. J. Law, 518. The contention is that such judgment is not final, but respondeat ouster. But this view is plainly erroneous. A judgment for plaintiff, on demurrer to a plea in abatement, is of that nature. On demurrer to a declaration, the judgment for plaintiff is peremptory,—quod recuperet. Johnson v. Rowan, 16 N. J. Law, 266; Hale v. Lawrence, 22 N. J. Law, 72; Tidd, Pr. 687; Archb. Crim. Pl. 352; Could, Pl. c. 9, § 42. Since an alternative mandamus is treated as a declaration, the like effect will be given to the overruling of a demurrer to it, and relators will be deemed to have been conclusively adjudged to be entitled to the relief demanded. The motion for judgment and a peremptory mandamus asks what the record, in this respect, entitled relators to.

But a court is not bound in all cases to permit the entry of a conclusive judgment upon overruling a demurrer. On the contrary, the practice is to permit, under certain circumstances, a defeated demurrant to withdraw his demurrer and interpose a plea. This will be done whenever the court is satisfied that he has a substantial defense which can only be thus interposed. When this permission is granted, it is on the terms that demurrant pay the costs on the demurrer, which terms are required in cases coming under the practice act, Revision, p. 892, § 280. In Johnson v. Rowan, supra, it was intimated that liberty to plead anew was granted when a meritorious defense was made to appear by affidavit. Doubtless the court could require the merits of a defense to be thus shown. But, in later practice, uncontroverted statements of counsel have sometimes been considered, and, if a substantial defense thus appeared, permission to withdraw demurrer and plead has been granted. But, when it appears that the matter suggested could not be successfully pleaded, permission will be refused. Broad well v. Denman, 7 N. J. Law, 278. As the alternative mandamus takes the place of a declaration in these proceedings, the same practice should be followed. If a demurring defendant shows a real ground on which the command of the alternative writ ought not to be made peremptory, which he can only set up by return, he ought to be permitted to withdraw his demurrer, and make return on like terms as to costs. I have examined with care the brief of the counsel for the freeholders of Passaic, and have failed to discover any allegation which would require the court to now permit them to make a return to the alternative writ. It is first alleged that the bridge in question is not on a continuous highway, is not essential to the fullest use of any highway, and is of very little importance. But it is obvious that a return of these facts would not contradict the charge of a duty on the part of these adjoining counties to maintain this bridge; for, if it is a public bridge, as charged, it is quite immaterial whether the highway is important or continuous, or how fully it can be used without the bridge.

It is next suggested that it ought to be determined whether any authority has been conferred on the freeholders to erect and maintain bridges between two counties, unless by special statutes. The contention seems to be that no general acts confer such power, and the inference is that there was no special act covering the case in hand. But any pleading founded on a charge of legal duty must show that duty by proper allegations of the facts out of which it arises. An alternative mandamus is subject to this rule, and will be bad in substance, if the duty charged does not arise out of the facts stated. City of Newark v. Stout, 18 Atl. Rep. 943; Rader v. Township of Union, ubi supra; Freeholders v. Railroad Co., 45 N. J. Law, 82. Both defendants are public corporations. Their duty...

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3 cases
  • Katz v. Farber, A--104
    • United States
    • New Jersey Supreme Court
    • April 24, 1950
    ...& A. 1872); Apperson v. Mutual Benefit Life Ins. Co., 38 N.J.L. 388 (Sup.Ct. 1876); State ex rel. Hopper v. Board of Chosen Freeholders of County of Bergen, 52 N.J.L. 313, 318, 19 A. 383 (Sup.Ct. 1890); Fitzsimmons v. Bonavita, 77 N.J.Eq. 277, 76 A. 313 (Ch. 1910). At common law there was n......
  • Flanigan v. Burritt
    • United States
    • Nevada Supreme Court
    • June 1, 1918
    ... ...          In the ... case of State of Nevada ex rel. Curtis v ... McCullough, 3 Nev. 202, ... New Jersey, in the case of State ex rel. Hopper et al. v ... Board of Freeholders, 52 N. J. Law, 313, 19 ... ...
  • Trenton Malleable Iron Co. v. Faley, 98.
    • United States
    • New Jersey Supreme Court
    • October 9, 1935
    ...The right to costs is a creature of statute. Lehigh Valley Railroad Co. v. McFarland, 44 N. J. Law, 674; Hopper v. Freeholders of Bergen County, 52 N. J. Law, 313, 318, 19 A. 383; Igoe Bros. v. National Surety Company, 112 N. J. Law, 243, 251, 169 A. 841, 96 A. L. R. 1422; 15 C. J. Paragrap......

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