Feick v. Hill Bread Co.

| N.J. | Nov 18, 1918

Per Curiam.

This is an appeal from a judgment of the Supreme Court sustaining a demurrer to an alternative writ of mandamus and ordering the issuance of a peremptory writ.

The respondent questions whether an appeal will lie on the ground that proceedings on prerogative writs are not governed by the Practice act of 1912. Pamph. L., p. 374 . This is a misconception. The contention of counsel is doubtless based on section 3 of that act, which provides that there shall be but one form of civil action in common law courts which shall be denominated "action at law,” but which shall not apply to proceedings on prerogative writs. That simply means that rules to show cause, writs, &c., in proceedings in the court of, first instance shall obtain as theretofore, but has nothing to do with appeals from judgments in those proceedings.

The Practice act of 1912 (Pamph. L., p. 382, § 25) provides that writs of error in civil cases are abolished and that in lieu an appeal may be taken in any case in which the appellant would theretofore have been entitled to that writ. As mandamus is not a criminal case it must be a civil one, and, therefore, appeal and not error is the only allowable appellate proceeding under that act.

On the meritorious questions involved, the Supreme Court, in our opinion, reached the right result, and the judgment under review herein will be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Kalisch in the Supreme Court.

For affirmance — The Chancellor, Swayze, Trenchard, Bergen, Minturn, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 11.

For reversal — None.