10 N.J.L. 142 | N.J. | 1828
This ease comes before us in a manner some» what irregular. An appeal was made from the court for the trial of small causes, before Justice Robertson, to the Common Pleas of the county of Warren. When the hearing of the appeal came on, the following judgment was given, as appears by the return to the certiorari now before us. “ This appeal being called in its turn, the court after hearing the argument of counsel, reverse the judgment rendered by the justice, with costs to be taxed.” From this order it would not be very readily inferred, that the Court of Common Pleas, were of opinion the justice had rendered no judgment, and on that account had ordered the reversal. Among the papers, however, connected with the return is a certificate of one of the judges of the court, setting forth the occurrences at the hearing and presenting a different view of the case; but whether this certificate was made at the hearing or since ; whether it is the act of the court or of a single judge j whether done. in open court or elsewhere, in no wise appears. Inasmuch, however, as it was referred to on the argument before us by the counsel of both parties we may, perhaps properly, disregarding some irregularity, look into it for éxplanation of the grounds of the order of the Court of Common Pleas. The judge certifies, that when the trial of the appeal came on, the counsel of the appellee moved to dismiss the appeal, because no judgment had been rendered from which an appeal could lie. But the court refused. The appellee then offered the witnesses examined before the justice, in order to support and establish
It is clear then, that in the present case it was not regular for the Court of Common Pleas, merely to inspect the transcript returned to them by the justice, and to reverse or set aside the proceedings, because on certiorari the Supreme Court had done the like. It may not be without profit here to remark, that in most of the cases in which such decisions have been made by this court, it appeared that the justice, without rendering judgment, had actually issued execution, which was not done in the case before us ; and the reason given by the court in the earlier cases in the reports for setting aside the proceedings, is, that without judgment it was unlawful to issue execution.
If when this appeal was called on for hearing, in the Court of Common Pleas, it appeared to the court that the justice had rendered no judgment, it was the duty of the court to have dismissed the appeal for want of jurisdiction. A judgment was indispensable to give them jurisdiction. The act of the legislature, the only
In my opinion, the judgment of the Court of Common Pleas is erroneous and should he reversed, and the record and proceedings should be remitted in order that the court may do what has not yet been done, proceed therein agreeably to law. From the remarks already ¡nade, I trust it is clearly understood, that I intend merely to say that the order in fact made by the Court of Common Pleas was erroneous. Whether there was or was not a judgment, from which an appeal could be taken, and whether that court will, when the cause is returned to them, dismiss the appeal or proceed to hear the parties, arc points for their determination, and ought to go to them unbiassed,.