State v. Fleming

• Decision Date: 10 November 1902
• Parties: STATE (VANDERVOORT et al., Prosecutors) v. FLEMING.
• Court: New Jersey Supreme Court

53 A. 225

68 N.J.L. 507

STATE (VANDERVOORT et al., Prosecutors)

v. FLEMING.

Supreme Court of New Jersey.

Nov. 10, 1902.

(Syllabus by the Court.)

Certiorari to court of common pleas, Hunterdon county.

Certiorari by the state, on the prosecution of John Vandervoort and others, against William H. Fleming, to review a judgment. Reversed.

Argued June term, 1902, before DIXON, PITNEY, and HENDRICK SON, JJ.

Coddington & Swackhamer, for prosecutors.

George H. Large, for defendant.

HENDRICKSON, J. This writ brings up for review a judgment of nonsuit by the Hunterdon pleas, granted on the trial of an appeal. The ground of the motion was that the justice of the peace, at the time he gave judgment, had lost jurisdiction of the cause through an irregular adjournment. The case was tried by jury in the justice's court, and the result was a disagreement The justice failed to adjourn to a day, but afterwards set down the cause for trial a week later, and gave notice to the parties. On the day appointed, both parties appeared with their respective counsel. The plaintiff asked a jury, which was summoned and sworn, and the case was about to proceed, when the defendant's counsel moved to dismiss the suit on the ground that the case had not been regularly continued, and the parties were now out of court; that defendant appeared under protest The justice allowed the trial to proceed, in which the defendant participated, resulting in a verdict and judgment from which the defendant appealed. The prosecutors contend that the nonsuit was erroneous; that, an appeal having been taken, the court must retry the case on its merits, and without regard to alleged irregularities in the trial below. This contention must be sustained. It was decided by this court in Barclay v. Brabston, 49 N. J. Law, 629, 9 Atl. 769, that, upon the trial of an appeal regularly taken, it is the duty of the court to retry the cause upon the merits, and not to pass upon the legality of the procedure of the court below; citing eases. It was also decided in that case that, where the justice's judgment was rendered on a day when he had no jurisdiction of the cause, the defendant had a choice of remedies, by appeal for a new trial, or by certiorari for a mere legal review. To the like effect is the case of Steinlein v. Folwell, 53 N. J. Law, 176, 20 Atl. 1079. These cases are decisive of the question now before us. The case of Parker v. Safe Deposit Co., 63 N. J. Law, 505, 44 Atl. 199, has been cited...