State v. Ohl

• Decision Date: 17 March 1896
• Citation: 58 N.J.L. 557,34 A. 755
• Parties: STATE (SHANGNUOLO, Prosecutor) v. OHL.
• Court: New Jersey Supreme Court

34 A. 755

58 N.J.L. 557

STATE (SHANGNUOLO, Prosecutor)

v. OHL.

Supreme Court of New Jersey.

March 17, 1896.

(Syllabus by the Court.)

Certiorari to court of common pleas, Essex county; Kirkpatrick, Led with, and Schalk, Judges.

Action by Adam Ohl, surviving partner of the firm of Ohl & Hefner, against Vincenzio Shangnuolo, in the district court. From a judgment for plaintiff in a less sum than that demanded, plaintiff appealed to the common pleas. There was a' judgment for plaintiff, and defendant prosecutes certiorari. Affirmed.

Argued November term, 1895, before GARRISON and LIPPINCOTT, JJ.

James M. Trimble, for prosecutor.

Ernst P. Keer, for defendant.

LIPPINCOTT, J. This certiorari is sued out by Vincenzio Shangnuolo to review a judgment of the court of common pleas of the county of Essex on an appeal from the judgment of the Second district court of the city of Newark, wherein Adam Ohl, surviving partner of the late firm of Ohl & Hefner, was plaintiff, and Vincenzio Shangnuolo was defendant. The judgment in the district court was in favor of Ohl, and against Shangnuolo, for the sum of $15 debt, and $5.52 costs of suit. From this judgment, Ohl appealed to the court of common pleas. A trial was had in that court de novo, and a judgment rendered in favor of Ohl, and against Shangnuolo, for the sum of $174.91, with costs to be taxed. The bill of costs taxed included the costs below and the costs in the common pleas. The prosecutor now seeks to reverse the judgment of the court of common pleas.

By one class of reasons, several in number, he urges that this judgment should be reversed because the proof in the cause in the common pleas is not sufficient to sustain a recovery. There are several reasons, stated in different phraseology, directed to this point The court of common pleas have not certified any statement of fact upon which the judgment was founded, but have certified the entire evidence, on both sides. The bill of particulars annexed to the state of demand or declaration includes about 80 items of account in favor of the plaintiff, and against the prosecutor, amounting to $387.21. Several items of credit of payments are given; leaving a balance of $162.21, with interest thereon from July 1, 1892. An examination of the evidence reveals no dispute about the credit The items of the plaintiff's account were for work and materials done and furnished in repairing, at different times, a machine for the manufacture of maccaroni. Several contracts for the work and materials were admitted in evidence in the common pleas, but they do not appear in the state of the case on which this review is had. The evidence is quite voluminous, and it has been examined carefully for the purpose of determining whether there was any evidence by which this judgment could be sustained. The evidence on the part of the plaintiff would sustain a recovery against the prosecutor for the amount claimed. The evidence on the part of the prosecutor, defendant below, is directed to the denial of the claim of the plaintiff,—not so much to dispute the items of the account as to show that the workmanship and materials were so defective that but a small sum, if any, remained due and owing. The work was alleged to have been done and materials furnished by the firm of Ohl & Hefner, of which Ohl was the surviving partner. Upon the questions of how much work was done, and the quantity and quality of the workmanship and materials furnished, there exists much disputed evidence. The common pleas determined these questions of fact and directed judgment against the prosecutor. This disputed evidence will not be analyzed or reviewed here, except so far as to ascertain whether there was evidence produced on the trial which would reasonably sustain the finding by the trial court. The trial on the appeal was de novo, and every element of fact was before the court for its determination. The weight of evidence, the force and effect thereof, and the credibility of the witness, were all questions with which the court below were entitled to deal and determine. It is not the province of this court on certiorari, to determine disputed questions of fact or consider the weight of evidence, in order to reverse the judgment of the court of common pleas on appeal from district courts, or courts for the trial of small causes, especially when there exists any evidence to support the finding of the court below. Roehers v. Remhoff, 55 N. J. Law, 475-478, 26 Atl. 860; and cases cited. The reasons of the prosecutor, directed to the sufficiency of the evidence below to support the judgment cannot be sustained.

An objection is made in one of the reasons that the plaintiff below, Ohl, sues as surviving partner, and yet it is not shown by the evidence that Hefner, the...