54 N.J.L. 506 | N.J. | 1892
The opinion of the court was delivered by
The attack of prosecutors should be confined ' to the part of the proceedings respecting the vacation of the public road in question, which have not heretofore been, adjudicated upon in this court.
Their objections are, therefore, applicable to an order of the-Common Pleas of Gloucester county, made February 25th-1891, which, after reciting a previous order appointing-surveyors to view the road in question, and that the proceedings had been removed to this court by certiorari, which was-subsequently dismissed, directed the surveyors to meet at a. certain time and place, and thereon proceed according to law and the previous order, and the return made by the surveyors-under said order.
The case shows that the original order appointing surveyors,, and directing them to meet at a certain time and place, for the-
A writ of supersedeas was also allowed by this court, commanding the surveyors to desist from meeting at the time and place mentioned in the original order, and also from taking any other proceedings until the further order of this court.
Upon consideration of the certiorari above mentioned, this-court was of opinion that the order appointing the surveyors-was valid. Parker v. Adams, 21 Atl. Rep. 938.
A rule was there entered dismissing the writ of certiorari. But no remittitur was then, or has since been, ordered. Nor has the supersedeas been discharged.
It also appears that a writ of error has issued removing the judgment of this court to the Court of Errors.
Upon these facts the prosecutors are entitled to relief.
Where a certiorari has removed the record of an inferior tribunal into this court, it remains here until remitted by order of the court. Citizens’ Gas Light Co. v. Alden, 15 Vroom 648; 2 Hale P. C. 213.
That the writ was dismissed does not change the situation. Where a writ of error, which has removed a record into this court, is dismissed, a second writ directed to the court below is nugatory, because the record is yet here. Welsh v. Brown, 13 Vroom 323.
The result is, that the record of the original order remains-here, or in the Court of Errors. There was nothing in the Common Pleas on which to found the order of February 25th, 1891, and it, and the return made thereon, must be vacated and set aside, with costs.
