57 N.J.L. 655 | N.J. | 1895
The opinion of the court was delivered by
This writ of error brings up the record of a judgment recovered in the Supreme Court by Kelly, the
Errors are assigned upon the record alone.
The record discloses that the issue joined came on for trial in the county in which the venue was laid, and the parties consented (1) to waive a trial by jury, and (2) that the cause be referred to the Circuit judge for trial, pursuant to the statute in such case made and provided. It also appears that the justice of the Supreme Court holding the Circuit in that county referred the cause to the Circuit judge, who reported a trial thereof before him, with a jury, resulting in a verdict for Kelly, assessing his damages at $12,000, whereupon the Supreme Court justice found the railway company guilty and assessed Kelly’s damages at that sum.
It is manifest that this procedure was taken under the provisions of section 3 of the “Act supplemental to an act entitled ‘An act relative to the Supreme and Circuit Courts,’ approved March twenty-seventh, eighteen hundred and seventy-four, and also for the appointment of three judges to hold said Circuit Courts and to define their powers,” which supplemental act was approved March 9th, 1893; Pamph. L.,p. 158.
Whether in causes tried under the provisions of that section, the, postea need set out the reference to the Circuit judge and his report, may be open to question. It seems to have been considered by the Supreme Court that those facts ought to appear in the postea. But it may be argued that, as it is not the province of the postea to set forth the evidence upon which the Supreme Court justice trying an issue without a jury bases his finding, the statement of the Circuit judge’s report, which, by the provisions of the section, is mere evidence, is unnecessary and out of place in a postea. But the question was not argued, and no opinion will be expressed thereon.
It may also be suggested that the question presented by plaintiff in error would have been raised more appropriately by an objection to the admission by the Supreme Court justice of the report of the Circuit judge as evidence.
The assignment of errors grounds the objection of plaintiff in error solely upon the alleged unconstitutionality of the act of 1893 above cited, or at least of the provisions of its third section.
It is first argued that the provisions in question interfere with and diminish the constitutional jurisdiction of the Supreme Court, in that they permit an issue triable only in that court to be tried by or before a Circuit judge. But this is an erroneous statement of the scope of the proyisions which distinctly provide for the trial of the issue before the Supreme Court justice without a jury, in the manner customary in this state since the passage of the “Act to simplify the pleadings and practice in courts of law,” approved March 17th, 1855, the eightieth section of which has become section T 76 of our present Practice act. Rev., p. 875. The propriety of such a trial is incontestable. Columbia Delaware Bridge Co. v. Geisse, 9 Vroom 39, 580; Blackford v. Plainfield Gas Light Co., 14 Id. 438.
The provisions of the third section of the act of 1893 do not compel a. party to submit the issue to. be tried by another tribunal. But they do permit the parties, by their mutual consent, to adopt a mode of procedure whereby the truth of the facts at issue may be determined and such determination may have the force of conclusive evidence before the Supreme Court justice. The record shows a consent of parties to a reference pursuant to the statute, and this includes consent that the judge’s report should be conclusive evidence before the Supreme Court justice. I find it impossible to discover anything in such provisions for giving effect to the agreement of parties out of accord with the constitution.
But it is further argued that these provisions deprive a party of his right of exception to the rulings of the Circuit Court upon the trial of the issue, and are for that reason obnoxious to the constitutional requirements. It is unneces
Such legislative permissions as are found in this act remove no safeguard of the rights of individuals. If anyone is thereby deprived of a right, it is with his consent. Every right may be preserved by a refusal to consent.
It may be further added that the procedure complained of may otherwise be vindicated. The Circuit Court possessed, by law, jurisdiction over the cause of action disclosed by this record. While consent cannot confer upon a tribunal a jurisdiction not vested in it by law, yet parties may, by consent, permit a tribunal to acquire, though irregularly, a jurisdiction which the law has conferred upon it. North Hudson County Railway Co. v. Flannagan, ante p. 236.
Upon this principle I perceive no error in permitting parties, by their consent, to recognize a jurisdiction in the Circuit Court to try an issue in the Supreme Court, and that the determination of the Circuit Court upon that issue should be conclusive evidence in the Supreme Court.
The result is that the judgment must be affirmed.
For affirmance — The Chancellor, Chief Justice, Dixon, Garrison, Gummere, Lippincott, Mague, Reed, Van Syckel, Bohert, Brown, Sims. 12.
For reversal — None.
