56 N.J.L. 414 | N.J. | 1894
The opinion of the court was delivered by
A caveat to the will of Stephen Bum-stead, deceased, was filed in the Orphans’ Court of the county of Monmouth, whereupon the questions involved in the con
By order of the Circuit Court, the case was transferred for •trial to the Court of Common Pleas under the act of 1892. Ramph. L., p. 224.
On the trial of the case in the Pleas the issues were found in favor of the caveators, who thereupon applied to the judges of the Pleas to certify the proceedings to the Orphans’ Court, in pursuance of the twentieth section of the Orphans’ Court act.
The Court of Common Pleas granted a new trial and refused to certify to the Orphans’ Court as requested.
'A rule to show cause why a writ of imandamus should not issue commanding the Common Pleas to certify the verdict •and proceedings was then granted by this court.
The act of March 23d, 1892, entitled “An act to authorize the transfer of suits from the several county circuit courts to ■the several inferior courts of common pleas,” provides that w.hen any suit is or shall be pending in any Circuit Court of any of the counties of the first and second classes of this state, it shall be lawful for any justice of the Supreme Court presiding in 'that district, at his discretion, to order the process, pleadings and other papers pertaining thereto to be delivered to the clerk of the Inferior Court of Common Pleas of such county, who is hereby directed to file the same in his office; and that thereupon the said Inferior Court of Common' Pleas shall have authority to hear and decide said suit and to proceed therein in like manner as if the same had been originally brought in said court, provided that said justice of the Supreme Court may at any time by his order remand said suit into the Circuit Court from which it shall have been removed; and thereupon said process, pleadings, minute entries and other proceedings shall be returned to and filed in said Circuit Court; and said suit shall therein be proceeded with according to law.
It is manifest that this legislation applies exclusively to
It has no relation whatever to the trial of an issue sent from the Orphans’ Court to the Circuit Court, under the nineteenth section of the Orphans’ Court act. In such a case-there is an entire absence of process and pleadings in the Circuit Court. There is nothing in the act of 1892 which, by expression or by the remotest implication, gives the Circuit Court authority to deliver anything to the Common Pleas which will invest that court with power to determine-the issue involved in the trial of a caveat to a will.
The Common Pleas was without power to hear the case. The entire proceeding is coram non judice and void. The case is still pending in the Circuit Court, where it must be-tried according to law.
The mandamus must be denied, but without costs.
