Hansen v. De Vita

| N.J. | Mar 10, 1909

The opinion of the court was delivered by

Garrison, J.

The mandamus that is applied for would seem to run counter to two well established principles touching the ordering of the amendment of judgment records. First, in that the relator has already taken the judgment of this court upon a record laid before it by him as being the record in the cause. At any time before the rendition of its decision upon the record thus laid before it, this court could have listened to a suggestion looking to its withdrawal and the substitution of some other record; even after argument such a suggestion is not necessarily too late. Thus in the case of Apgar v. Hiler, 4 Zab. 808, Chief Justice Green, speaking for the Court of Errors and Appeals, said: “This inay be done even after argument,” but added that where the party making the application had suffered two terms to pass “there would be serious objection to permitting the amendment to be made upon any terms where the objection was not merely formal and where the other party has been subjected in vindication of his rights to the expense of setting down the cause for hearing and preparing for argument.”

If this be so even before argument it must upon principle and to a much greater degree be so after a writ based on such record has been prosecuted to a final decision. In the case cited moreover the application came from the defendant in error who had not brought up the record, hence the principle invoked would apply with much greater force to the plaintiff in error who had laid before the court the record as the one upon which he desired its judgment.

The doctrine underlying this practical rule is that litigants are not to speculate by obtaining the decision of a court upon a record solemnly laid before it for that purpose and then, if such decision chanced to be unfavorable, be heard to say that such record laid before the court was not the real record. In the present case the relator as plaintiff in error had the advantage of having before this court the record on which its judgment was asked under many assignments of error; had the decision on any of the grounds based on such record been favorable to him he would have obtained a reversal of the judgment upon a ground which he now says ought not to have been open to him at all. Af ter having enjoyed whatever of advantage inhered in the situation thus created by him, it is too late now for him to say that the record of which he thus availed himself was not the record in his cause. This court in the exercise of a sound discretion regulated by the foregoing principle, enunciated by Chief Justice Green, should, under such circumstances, withhold its writ of mandamus.

The other objection is that the mandamus is asked for to compel the Circuit Court to make a specific change in its record. The Circuit Court has already entertained a motion to make such change and has decided not to make it. The refusal of a court to decide a particular matter in a particular way cannot be controlled by mandamus. Squier v. Gale, 1 Halst. 157.

This court by mandamus may compel an inferior court to exercise its discretion, but it cannot control or dictate to the court in the exercise of that discretion. Roberts v. Holsworth, 5 Halst. 57.

A refusal of an inferior court in its discretion to amend its record cannot be reviewed by this court. Davis v. Delaware Township, 13 Vroom 513; affirmed, 16 Id. 186.

Therefore as was said in the opinion adopted by the Court of Errors in the last case cited : “A writ of mandamus will not go to a court to compel it to alter its record so that it will correspond with a state of facts disclosed by affidavits.”

The case before us is directly within these general principles, since its sole and avowed purpose is to compel the Circuit Court to reverse a decision it has already made upon a consideration by it of the precise question that is now before us. This is not the function of the writ of mandamus.

Upon either of the grounds stated the application now before us must be denied.