44 N.J.L. 648 | N.J. | 1882
The opinion of the court was delivered by
The first error assigned is upon the refusal of the Supreme Court to dismiss the writ of certiorari by which the Citizens’ Gas Light Company was drawn into the litigation, because that writ brought up no record to be reviewed. A writ of certiorari at the instance of the prosecutrix, and in her aid', in an action involving title to lands, had gone to the corporate authorities of the city of Newark, directing proceedings touching a tax sale of the lands in suit, to be certified to the court for its judgment. The city returned the record and proceedings into the Supreme Court. One David H. Tichenor, to whom a declaration of sale had been made, and who had conveyed the land, was admitted to defend the city’s sale. The parties then before the court were heard, and
The return made by the city to the second writ was the truthful, therefore the proper one. There was no record to be certified under it. The gas light company was custodian of no record, and it was at liberty to make- such return as it might be advised and was permitted to make. It may be conceded that the second certiorari was, so far as it affected the record, a nullity. But it does not follow that the court below should have refused to hear the parties when brought before it. The error of the plaintiffs’ position is in regarding the litigation between these parties, as disconnected with the record already in court. There was but one record, and that was spread before the court. Upon that errors were assigned, and its inspection for errors was within its power and became its duty.
In certiorari, as in other proceedings on error, two things are essential to call in action the revising power of the court. One is to draw in the record, the other to bring the parties to be affected by the review. The former is accomplished by the command of the writ upon the custodian of the required proceedings to certify them to the court. On the return and upon errors assigned, the party interested in defending them, should have adequate notice to appear.
A review of the early practice in England in writs of error is given by Mr. JusticeDepue in Welsh v. Brown, 13 Vroom 323.
It was granted as well after judgment in error, as before when restitution had not been awarded. Appearances here are voluntarily effected under regulations of the court. In certiorari the mode of bringing in the defendant has not been uniform. He is sometimes named in the writ with that of the custodian of the record, who may or may not be a proper party defendant, or his name is endorsed on it. Service of a copy of the writ in such case has been regarded as authority to appear in the suit without other leave. Parties showing an interest in the litigation who are not named in the proceeding are admitted upon motion, and often notice is given interested parties without service of the writ. I see no reason why they may not be required to appear by rule of court. When the record is in court, the writ is properly sued out to give the court jurisdiction to proceed in the litigation and to bring in the parties who are entitled to be heard, and who are sought to be bound by its judgment. Such was its effect in
Cases were cited by counsel, in which the Supreme Court had refused to hear a second time matters which the same parties had already litigated under certiorari proceedings. State v. Jersey City, 1 Vroom 247; State v. Nerney, 5 Dutcher 189; Barnes v. Gibbs, 2 Vroom 318.
But the record of the judgment which the defendant in error’, who raises this objection, claims to be conclusive, does not show the gas light company to have been a party. A matter is res adjudicata when these several conditions concur : identity of the thing in controversy; of the cause of action; of the persons and parties to the action; and of the quality or character in the persons for or against whom the claim is made. This wants the essential of identity of parties.
The doctrine does not rest upon the idea that the court’s power is spent in the former proceeding. It is pleadable in bar of the action, not to the jurisdiction of the court. Its ground is, that the parties are estopped by the record from again litigating matters already judicially determined. If the estoppel be not pleaded or brought before the court, there may be another judgment. '
In State v. Jersey City, supra, the court was informed of its former judgment, which concluded those parties by the return made by a defendant. As estoppels are mutual, binding the parties and privies, there is no estoppel here which the gas light company could plead, unless by privity with a defendant in that procedure; it as well as the prosecutrix ■was concluded by that judgment. This, it is presumed, the company would n’ot assent to.
Where a municipality, whose proceedings are attacked under a writ issued in aid of ejectment, stands as the only party in the writ, and it appears to the court that there are others in interest to be affected by the controversy, they will not proceed in it until such others are brought in, (Fleischauer v. West Hoboken, 10 Vroom 421,) and that upon principles of justice so obvious as to underlie all rational systems of law. No one can be bound without first being heard. The act referred to was not intended to change the rights of parties in such real litigations, but simply to turn this branch of the inquiry over to a forum different from that taking cognizance of the main controversy. It is the duty of the court in the preservation of such rights, to see that the true parties to the main litigation are permitted to be brought, into court, both to be heard and to be bound. The second writ was issued with that design, and I think it was properly issued, and that the court below rightfully proceeded upon it. As to the merits of the controversy, I assent to the conclusions of the Supreme Court, that the notice to delinquent tax-payers was not in compliance with the requirements of the provisions of the city charter of Newark, and was, under recognized adjudications, adequate ground for setting aside the proceedings of sale. I deem it unnecessary to add anything to the reasons or citations of authorities in support of it given by Justice Van Syckel (7 Vroom 288) and those contained in the opinion of Justice Scudder in this case. The ground, however, I am compelled to say, seems to me to be on the border line between shadow and substance, and my assent to it is yielded in bowed submission to the rule stare decisis.
I agree with the judgment of the Supreme Court as to the
Laws, generally, are enacted for the regulation of future affairs and conduct, and tb establish the basis on which rights may thereafter under them be rested, and are not usually designed to alter or affect the quality or legal relations of past acts and concluded transactions, much less to disturb rights which have arisen under laws running concurrently with their birth. Hence we do not look for or expect in any enactment that it shall be operative as of time prior to its own existence; and before we are permitted to ascribe to it such purpose, there must be found in the law such clear and indubitable ex
For the foregoing reasons, I shall vote to affirm the judgment, with costs.
For affirmance—Chief Justice, Depue, Knapp, Magie, Reed, Clement, Cole, Kirk, Paterson, Whitaker. 10.
For reversal—None.