Tomlinson v. Armour & Co.

• Decision Date: 15 June 1908
• Parties: TOMLINSON v. ARMOUR & CO.
• Court: New Jersey Supreme Court

70 A. 314

75 N.J.L. 748

TOMLINSON

v. ARMOUR & CO.

Court of Errors and Appeals of New Jersey.

June 15, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Sara V. Tomlinson against Armour & Co. From a judgment of the Supreme Court sustaining defendant's demurrer to the declaration (65 Atl. 883), plaintiff brings error. Reversed, and record remitted.

Carrow & Kraft, for plaintiff in error.

Gaskill & Gaskill, for defendant in error.

PITNEY, Ch. This writ of error is brought to review a decision of the Supreme Court sustaining defendant's demurrer to plaintiff's declaration. The record returned by that court to the writ of error, besides reciting the declaration and the demurrer thereto, sets forth simply that the court, having heard the argument of counsel upon the. demurrer, and having duly considered the same, did order that the demurrer be sustained, with costs. There is no more formal entry of judgment, nor any award of a specific sum for costs. Upon this record the plaintiff in error assigns error, in that the Supreme Court ordered that the demurrer be sustained, with costs, and decided that judgment should be given for the defendant, whereas judgment should have been given for the plaintiff. The defendant in error filed the common joinder in error, averring "that there is no error, either in the record and proceedings aforesaid or in giving the judgment aforesaid"; and praying "that the judgment aforesaid, in manner aforesaid given, may in all things be affirmed," etc. The case has been submitted upon arguments addressed to the merits, without suggestion of a motion to quash, or other objection, based upon the want of a proper judgment returned. The question suggests itself, however, whether the record manifests a definitive adjudication against the plaintiff in error, which ought to be reviewed here.

The general rule is laid down in 2 Tidd's Prac. (3d Am. from 9th London Ed.) 1141, as follows: "No writ of error can be brought but on a judgment, or an award in the nature of a judgment; for the words of the writ are 'si judicium redditum sit,' etc. And hence it was formerly holden that a writ of error could not be brought before judgment given; and, if tested before, it was no supersedeas. But it seems to be now agreed that a writ of error, bearing teste before judgment, is good, so as the judgment be given before the return of it; and this is the usual course for preventing execution, and the allowance of it may be served before the return of the writ of inquiry and final judgment. Still, however, if the writ of error be returnable before judgment, it may be quashed." And at page 1102 it is said: "If the writ of error be returnable before judgment is given, it may be quashed on motion. But where the writ of error, on a judgment in the common pleas, was returnable in Easter Term, and the costs were not taxed and final Judgment signed until Trinity Term, after which the defendants, in Michaelmas Term, served the plaintiff with a rule to assign errors, and, the plaintiff having assigned them, the defendants, in the same term, joined in error, and, the case being afterwards argued, the judgment of the court of common pleas was reversed. The Court of King's Bench, under these circumstances, refused to quash the writ of error, on the ground that it was returnable before costs were taxed in the court below, and consequently before any judgment was given in that court; as the defendants ought to have applied to quash it, in an earlier stage of the proceedings"— citing Den v. Roake, 5 Barn. & Cres. 735, note.

In Thompson v. Bowne, 39 N. J. Law, 2, our Supreme Court, upon an examination of the record returned with a writ of error, concluded that no judgment had, as yet, been actually entered, and therefore dismissed the writ, as having been improvidently issued and returned; and this, although manifest error appeared in the proceedings. So harsh a practice ought not to be followed (especially after joinder in error and consideration of the merits), unless the state of the return clearly requires it; else a mere mistake in form, for which the plaintiff in error is not responsible, may delay the reversal of an erroneous judgment, or the affirmance of one that is free from error. And why should an erroneous judgment stand any the longer, because it adds informality to error? To so hold is simply to encourage loose practice in the entry of judgments.

In Cooper v. Vanderveer, 47 N. J. Law, 178, it clearly appeared that the action in which the alleged error had been committed had not proceeded to its termination, and the Supreme Court properly dismissed the writ of error. Chief Justice Beasley, however, in delivering the opinion, employed the phrase: "A writ of error will not run until the conclusion of the course of law in the court of first instance."

But in Stein v. Goodenough, 69 N. J. Law, 635, 56 Atl. 701, it was pointed out by this court that by the later English practice the writ of error 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; that even under this practice the writ was good only provided judgment was given before its return, and if it was returnable before judgment was entered, it was quashed upon motion; and that this practice is prevalent in this state, and is recognized by that section of our practice act (P. L. 1903, p. 582, § 170) which provides that whenever any writ or other proceeding shall require the removal of the record of any judgment to any other court, the clerk shall record the judgment and the proceeding in the action in full. In Stein v. Goodenough, we retained the cause, in order that the actual entry of judgment final might be procured, and the record then brought up by certiorari. But in that case the return showed that, although rules entitling the defendant in error to judgment had been entered in the minutes, no judgment had been actually entered.

The present case differs, for here the return discloses, not a mere minute or memorandum of the judgment that is to be entered, but the very entry of the judgment itself. The order sustaining the defendant's demurrer is certified to us, by the Supreme Court, as the record of the judgment called for by our writ of error. It may be presumed to have been entered in that form in the judgment book. Of course such an entry is informal. The technical and proper form of a judgment, sustaining defendant's demurrer to plaintiff's declaration, after reciting that it appears to the court that the declaration and the matters and things therein contained are not sufficient in law for the plaintiff to have and maintain his action thereof against the defendant, proceeds in substance as follows: "Therefore it is considered that the plaintiff take nothing by his said writ, and that the defendant go thereof without day," etc. And there follows a judgment for costs in the following form: "And it is further considered that the defendant do recover against the plaintiff [mentioning the sum], for his costs and charges by him about his defense, in this behalf laid out and expended, by the court here adjudged to the defendant with his assent, according to the form of the statute in such case made and provided; and that the defendant have execution, thereof," etc. Archbold's Append. 299.

But the technical phrase "ideo consideratum est" is not necessary to constitute such a judgment as will support a writ of error. Doe ex dem. Rutherford v. Fen, 21 N. J. Law, 700, 702. Such a defect, being one of form merely, may be amended (if necessary) in this court. Apgar's Adm'rs v. Hiler, 24 N. J. Law, 808; Del., Lack. & Western R. R. Co. v. Toffey, 38 N. J. Law, 525, 526, citing Hooper v. Lane, 6 H. of L. Cas. 443, 476, 489, 501, 555.

The common joinder in error—"in nullo est erratum"—amounts to an admission, by defendant in error, that what is returned as the record of the judgment under review is, in truth, the record thereof; so that after joinder in error neither party can of right allege diminution or have a certiorari. 2 Tidd, Prac. 1174; Gilliland v. Rappleyea, 15 N. J. Law, 138, 145. Indeed the common joinder ordinarily concludes with a prayer "that the judgment aforesaid, in manner aforesaid given, may in all things be affirmed." And such is the prayer of the defendant in this case. It involves a clear inconsistency to admit the defendant in error afterwards to move to quash the writ of error, on the ground that no judgment has been returned.

It is true that, notwithstanding the parties may thus be bound by their admissions, the court of review is not restrained from looking into the record, and may of its own motion award a certiorari to supply any defects in the body of the record or in its outbranches. Such was the course pursued by us in the case of Stein v. Goodenough, above cited. But in the present case the judgment record, in the form of which it has been made up in the Supreme Court, and by that court returned to us, sufficiently imports a determination of the merits raised by the demurrer, and lacks only a precise ascertainment of the amount of costs. Of this imperfection defendant in error makes no complaint. If the judgment is to be affirmed, only defendant in error will be harmed by the omission of costs. If the judgment is to be reversed, because erroneous on the merits, the judgment for costs will, of course, fall with it. A judgment in favor of either party upon demurrer to a declaration is a final judgment, reviewable on error. Hale v. Lawrence, 22 N. J. Law, 72, 80. Upon the whole, therefore, we see nothing in the exigencies of the present case to require that decision be delayed in order to enable the Supreme Court to perfect its judgment record, and return the perfected record to us pursuant to a certiorari. For the purposes of review we consider the judgment, as returned, sufficient in substance, and will treat...