90 N.J.L. 189 | N.J. | 1917
The opinion of the court was delivered hy
This appeal presents several interesting legal novelties. (1) It purports to he an appeal from the Supreme Court, but is in fact an appeal from a refusal by the Chief Justice alone of an order which by statute is to be made by one of the justices of the Supreme Court, not hy the court itself:’. (2) It is an attempt to have a case heard in this court before final judgment in any court and upon a mere refusal to issue a special form of process. (3) It is an attempt to review a matter which is within the discretion of
1. We hardly need cite authorities for the proposition that this court cannot directly review the order of a single justice of the Supreme Court, where he sits as such, and not as the court itself. The proper practice is pointed out in Key v. Paul, 61 N. J. L. 133. We cannot thus usurp the functions of the Supreme Court. East Orange v. Hussey, 70 Id. 244. Even the Habeas Corpus act, in providing for an appeal, is careful to provide that the proceedings shall be first removed by certiorari into the Supreme Court; only the final decision of that court can he removed into this. Comp. Stat., pp. 2651-53. We do not mean to say that this section is applicable to the present case; wte cite it to show the care with which the legislature, in a proceeding involving personal liberty, preserved the constitutional functions of the Supreme Court.
2. It is equally unnecessary to cite authorities for the proposition that an ajopeal cannot be effective until final judgment. ,The appeal in this case is taken under the supplement of 1912 to the Practice act. Section 25 permits an appeal where the appellant would formerly have been, entitled to a writ of error. Pamph. L., p. 382. That there could be no relief by writ of error until after final judgment is elementary learning. Courts of law do not permit the intolerable^ delay and expense that would arise if interlocutory appeals were permitted from every order that might be incidental to the progress of the cause; by its very terms the writ of error required a return only if judgment be given. The appellant relies upon Defiance Fruit Co. v. Fox, 76 N. J. L. 482; but that case came up only after final judgment. If.it be said that the appellant would thus be deprived of any beneficial review, the answer is, first, that such deprivation does not necessarily follow, and second, that the order may be such that it ought not to be reviewed. The deprivation of a review does not necessarily follow since there is an appeal from the single justice to the court in banc in one of its parts under Key v. Paul; since, also-, if the appellant was entitled
3. The history of the legislation as to the writ of habeas corpus cum causa for the .removal of causes into the Supreme Court, shows that this allowance was meant to be discretionary and was introduced for the correction of an abuse. At common law the writ issued of common right (3 Bl. Com. 130), and it was usual for a defendant to sue out the writ, keep it in his pocket without producing it, “till issue was joined, the jury sworn, and the plaintiff had given his evidence; hv which means the plaintiff wjas not only put to considerable expense, hut the defendant, knowing beforehand what proofs he could produce, had an opportunity of opposing them by false witnesses.” 1 Tidd Pr. 405. An interesting history is given by Chief Justice Ewing in Chandler v. Monmouth Bank, 9 N. J. L. 101. Some of these abuses were corrected by the act of 1797, to which Chief Justice Ewing referred. Pat. L., p. 258. The right of removal from the Common Pleas to the Supreme Court was limited to cases where debt, damages, matter or thing in controversy exceeded $200; no writ of habeas corpus was to be received by the Common Pleas, nor any cause removed by such writ after issue joined upon matter of law or of fact. By section 86 of the Practice act of 1799 (Pat. L., p. 364) the defendant on removing a cause by habeas corpus was required io enter into recognizance to the plaintiff in double the sum demanded for the payment of the condemnation money and costs in case judgment should pass against him. These provisions applied only to the removal from the Court of Common Pleas. In the act of 1838 to facilitate the administration of justice (Pamph. L., p. 61), section 8 authorized the removal to the Supreme Court by habeas corpus of suits or
The result, however, is not-an affirmance oí his order, but a dismissal oí the appeal, for the reason that the order was' not appealable. The respondent is entitled to costs.