Trimmer v. Bonnell & Melick

• Court: New Jersey Supreme Court
• Writing for the Court: VAN SYCKEL, J.
• Citation: Trimmer v. Bonnell & Melick, 46 A. 768, 65 N.J.L. 66 (N.J. 1900)
• Decision Date: 11 June 1900
• Parties: LAWRENCE TRIMMER v. BONNELL & MELICK

46 A. 768

65 N.J.L. 66

TRIMMER

v. BONNELL et al.

Supreme Court of New Jersey.

June 11, 1900.

(Syllabus by the Court.)

Error to court of common pleas, Hunterdon county.

Action by Lawrence Trimmer against Bonnell & Melick. Judgment for plaintiff was affirmed by the common pleas. Defendants bring error. Writ of error dismissed.

Argued February term, 1900, before DEPUE, C. J., and VAN SYCKEL and GUMMERE, JJ.

R. S. Kuhl, for plaintiffs in error. A. A. Clark, for defendant in error.

VAN SYCKEL, J.This suit was instituted in the court for the trial of small causes, where judgment was rendered for Trimmer, the plaintiff in said suit. Thereupon an appeal was taken by Bonnell & Melick to the Hunterdon common pleas, where the judgment was affirmed.

The defendants excepted to the charge of the trial judge in the common pleas, and had his bill of exceptions signed, and brought the case into this court by writ of error. He has assigned for error the charge of the court to which he excepted. The plaintiffs in error have mistaken their remedy in this case. A certiorari lies to the common pleas and quarter sessions on judgments given on appeals into those courts, where not restrained by the act giving the appeal. Griff. Law Reg. p. 1175. The circuit court act, as contained in the Revision under the act of April 2, 1845, to provide for revising the statute laws of this state, contains a provision that the judgments in the courts of common pleas upon appeals from courts for the trial of small causes may be removed into the circuit court of the same county by writ of certiorari in like manner, and upon similar terms, as such writs are now granted to remove similar matters into the supreme court Rev. St 1846, p. 201, § 4. This section clearly recognizes the writ of certiorari as the appropriate remedy to remove a judgment of the pleas on appeal from the justice's court into the supreme court. It has been the uniform practice to review such judgments by writ of certiorari, and not by writ of error. The provision contained in the small cause act, as revised in 1846, is "that no judgment, order or proceeding to be had or made by virtue of this act shall be removed by writ of error, but by certiorari only." Id. p. 247, § 66. The same provision is found in Rev. Laws 1821, p. 642, § 46. In Rev. St. 1846, p. 981, § 5, it is provided in the act respecting writs of error "that all errors happening in any court of common pleas shall be heard and rectified by the supreme court" This provision is also contained in Rev. Laws 1821, p. 401, § 5, and is now section 6 of the...