State v. Adams

• Decision Date: 19 June 1893
• Citation: 26 A. 914,55 N.J.L. 334
• Parties: STATE (PARKER et al., Prosecutors) v. ADAMS et al.
• Court: New Jersey Supreme Court

26 A. 914

55 N.J.L. 334

STATE (PARKER et al., Prosecutors)

v. ADAMS et al.

Court of Errors and Appeals of New Jersey.

June 19, 1893.

(Syllabus by the Court.)

Error to supreme court.

On certiorari at the relation of Samuel M. Parker and another against Jeremiah Adams and others certain proceedings in the court of common pleas appointing surveyors of the highways to vacate a public road were affirmed, (21 Atl. Rep, 938,) and relators bring error. Reversed.

T. E. French, for plaintiffs in error.

D. J. Pancoast, for defendants in error.

REED, J. Surveyors of the highways were appointed by the court of common pleas of Gloucester county on April 2, 1893, to vacate a public road. The order of appointment was carried into the supreme court by a writ of certiorari. While the proceedings were still in the supreme court, undetermined, a new application was made for the appointment of surveyors to vacate substantially the same road. Upon this application an order was made. The new order was also taken into the supreme court by certiorari. The supreme court found as a fact that the roads mentioned in the two orders were substantially the same. The order of the court of common pleas making the last appointment was by the supreme court affirmed. From this judgment this writ of error is taken.

The point in the court below, and renewed here, against the legality of the second appointment, is that during the pendency of the first proceeding the court of common pleas was powerless to make a second order. The rule in personal actions is that the pendency of an action can be pleaded in abatement of a second action between the same parties for the same purpose. This rule rests upon the maxim, "Nemo debet his vexari pro una et eadem causa." In proceedings of like character with those now under consideration I think it is a novelty to have two in progress at the same time, by the same parties, to accomplish the same object. In the condemnation of land for public use, for an instance, I do not know of any case, nor can I find a trace of any case in the books, where the same parties have put in motion a second proceeding to acquire the same land involved in a proceeding already pending. Not only is such a course opposed generally to legal rules of procedure, but in the matter of laying out, altering, or vacating public roads it seems to be inimical to the policy of the road act. That act provides that, in case the surveyors shall return that they think the laying out,...