80 N.J.L. 469 | N.J. | 1910
This writ of error brings under review a judgment of the Supreme Court which, by its terms, vacated the allocatur upon a writ of certiorari and dismissed the writ. The certiorari had been allowed upon the application of the now plaintiffs in error.
This court has no authority to review the exercise by the Supreme Court of its discretion about allowing or refusing to allow a writ of certiorari, nor to review the action of that court where the dismissal of such a writ is based upon any ground that lies in discretion.
But the dismissal of a writ of certiorari, ordered by the Supreme Court upon a final hearing of the merits, is reviewable. State, Hoxsey, pros., v. City of Paterson, 10 Vroom 489, 495; Middleton v. Robbins, 25 Id. 566.
In the present case, the Supreme Court had before it the materials necessary for the decision of the legal questions raised by the prosecutors in certiorari, and, in fact, decided those questions. We agree with the views expressed in the opinion of Mr. Justice Yoorhees.
It would seem that those views might well have led to an affirmance of the proceedings that were under review, rather than to a judgment vacating the allocatur and dismissing the writ of certiorari. But if there be error in the form of the judgment in this regard, it works no harm to the plaintiffs in error, and so is no ground for reversal at their instance.
The judgment should therefore be affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Minturn, Bogert, Yre-DENBURGH, YROOM, CONGDON, JJ. 11.
For reversal—None.
