Winegratii v. Mayor

• Decision Date: 08 March 1909
• Citation: 72 A. 91,77 N.J.L. 448
• Parties: WINEGRATII v. MAYOR, etc., of borough of FAIRVIEW IN BERGEN COUNTY.
• Court: New Jersey Supreme Court

72 A. 91

77 N.J.L. 448

WINEGRATII

v. MAYOR, etc., of borough of FAIRVIEW IN BERGEN COUNTY.

Supreme Court of New Jersey.

March 8, 1909.

(Syllabus by the Court.)

Application by William G. Winegrath for writ of certiorari to the Mayor and Council of the Borough of Fairview in Bergen County. Motion to vacate an order vacating the allocatur to the writ. Application denied.

Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ.

Peter W. Stagg, for prosecutor. Collins & Corbin, for defendant.

MINTURN, J. The sole question for determination upon this application is one of practice, viz., whether a justice of the Supreme Court, who allows a writ of certiorari, may subsequently, and before the return of the writ, vacate the allocatur, after hearing and upon due notice.

The "act relative to the writ of certiorari" (Rev. 1903; P. L. 1903, p. 343, § 1) empowers a justice of the Supreme Court to allow the writ in term time or in vacation, and also empowers him to make all necessary orders thereon. Section 4 of the act authorizes the justice to grant a rule to show cause why the writ should not be allowed, "and to make the same returnable before himself or before the court in banc"; the rule to have the same effect as if allowed by the court. The first section of the act is substantially the provision that was enacted April 6, 1805 (P. L. p. 799), and which has been re-enacted in hæc verba in all subsequent revisions of the subject. Rule GO of the Supreme Court provides that the justice who allowed a writ of certiorari may order a vacation of the allocatur. Under this rule it is quite clear that the justice who granted this writ was well within his power in ordering a vacation of the allocatur upon grounds which, if they had been presented in the first instance upon the ex parte application, would have resulted in a denial of the writ. This result is reached not only from a consideration of the rule referred to, but in view of the common-law application to the writ itself, which originally issued out of the King's Bench, in banc, and was known as a judicial writ in contradistinction to a writ of similar name, which issued out of chancery, and was denominated an original writ. Tidd's Practice, vol. 1, p. 403; Rex v. Eaton, 2 Durn. & East. 89. Originally the King's Bench, before the passage of any statute on the subject, exercised the power of controlling the writ after it had issued, in cases where it was likely to be misused, or where it was...