Stein v. Goodenough

• Decision Date: 21 December 1903
• Citation: 69 N.J.L. 635,56 A. 701
• Parties: STEIN v. GOODENOUGH.
• Court: New Jersey Supreme Court

56 A. 701

69 N.J.L. 635

STEIN

v. GOODENOUGH.

Court of Errors and Appeals of New Jersey.

Dec. 21, 1903.

Error to Circuit Court, Monmouth County.

Action by Herman Stein against Amelia Goodenough. There was a rule for judgment in favor of defendant, and plaintiff brings error. Case retained in order to procure an actual entry of judgment, and the bringing up of the record thereof by certiorari.

Alan H. Strong, for plaintiff in error.

Samuel A. Patterson, for defendant in error.

GUMMERE, C. J. This is an action in replevin. The purpose of the plaintiff in error (the plaintiff below) in suing out the writ of error was to review a ruling of the circuit court directing a nonsuit to be entered against him for failing to move the trial of the cause when it was called. It appears from the return made to the writ that, although a rule was entered in the minutes of the circuit court directing "that judgment of nonsuit be entered in favor of the defendant and against the plaintiff," no such judgment has in fact been entered. It further appears from the return that subsequent to the entering of the rule for judgment of nonsuit, and upon a suggestion of property in the defendant, a writ of inquiry was directed to issue for the purpose of ascertaining the value of the goods and chattels taken by the plaintiff under the writ of replevin, and the damages suffered by the defendant by reason of their detention, and that, upon the return of the writ of inquiry, a rule was entered in the minutes of the court directing that judgment be entered in favor of the defendant and against the plaintiff for the amount of such value and damages, but that no judgment has yet been entered in pursuance of this rule.

According to the early practice prevailing in the English courts, a writ of error could not even be sued out until after the rendition of judgment. This practice was subsequently modified, and the writ was permitted to be tested before judgment entered, in order that it might operate as a supersedeas in cases where execution was forthwith sued out. But even under the later practice the writ was only good provided judgment was given before its return, and, if it was returnable before judgment was entered, it was quashed upon motion made for that purpose. 2 Tidd's Prac. 1141, and cases cited. It is said in 7 Ency. of Plead. & Prac. p. 872, "The practice of suing out writs of error before judgment rendered has never prevailed in the United States, where the time of...