Brumagim v. Chew

New Jersey Court of Chancery

Brumagim v. Chew

21 N.J. Eq. 180

DecidedOctober 15, 1870

StatusPublished

This text of 21 N.J. Eq. 180 (Brumagim v. Chew) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brumagim v. Chew, 21 N.J. Eq. 180 (N.J. Ct. App. 1870).

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Opinion

The Chancellor.

The twenty-tliird section of the judiciary act of the United States, makes a writ of error to a Circuit Court a supersedeas to stay execution when a copy is lodged in the office of the clerk of the court where the record remains, within ten days, Sundays excluded, after rendering the judgment, or passing the decree complained of. The twenty-fifth section allows final judgments of the highest court of law or equity, in any state, in certain causes, to be removed to the Supremo Court of the United States; the citation in such case to be signed by the Chief Justice of the court rendering the decree complained of; and it provides that the writ shall have the same effect as if the judgment complained of had been rendered in the Circuit Court.

The question in this case is, whether “ the rendering the judgment,” or “passing the decree” complained of, from which the ten days begin, is the entry of the j udgmont in the Court of Appeals, or the filing of that judgment in the court below.

It has been settled in several cases in the Supreme Court, commencing with Gelston v. Hoyt, 3 Wheat. 246, that a writ of error may be directed either to the highest appellate court of the state where the judgment complained of was rendered, if the record still remain there, or to the court below, if the judgment and record have been remitted. But it must be directed to the court whore the record remains. These decisions do not affect the question in this case, except so far as they show that within the ten days, and until April 22d, the writ of error might have been brought to the Court of Appeals, and a copy filed there, which would have made it a stay of execution.

But recent decisions of the Supreme Court have determined that when the record has been remitted to the court below, and the writ of error directed to it, the entering the decree or judgment of the highest court in the court below, is to be taken as the time of rendering the judgment or passing the decree complained of. And that such decree [186]*186only becomes a final judgment in the sense of the twenty-third section of the judiciary act, when entered'in a court from which execution can issue. McGuire v. The Commonwealth, 3 Wall. 382; Green v. Van Buskerck, Ibid. 448.

No execution can issue from the Court of Appeals in New Jersey, and the rule laid down in the last case, therefore applies here.

The motion must be denied.

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The Chancellor.

The twenty-tliird section of the judiciary act of the United States, makes a writ of error to a Circuit Court a supersedeas to stay execution when a copy is lodged in the office of the clerk of the court where the record remains, within ten days, Sundays excluded, after rendering the judgment, or passing the decree complained of. The twenty-fifth section allows final judgments of the highest court of law or equity, in any state, in certain causes, to be removed to the Supremo Court of the United States; the citation in such case to be signed by the Chief Justice of the court rendering the decree complained of; and it provides that the writ shall have the same effect as if the judgment complained of had been rendered in the Circuit Court.

The question in this case is, whether “ the rendering the judgment,” or “passing the decree” complained of, from which the ten days begin, is the entry of the j udgmont in the Court of Appeals, or the filing of that judgment in the court below.

It has been settled in several cases in the Supreme Court, commencing with Gelston v. Hoyt, 3 Wheat. 246, that a writ of error may be directed either to the highest appellate court of the state where the judgment complained of was rendered, if the record still remain there, or to the court below, if the judgment and record have been remitted. But it must be directed to the court whore the record remains. These decisions do not affect the question in this case, except so far as they show that within the ten days, and until April 22d, the writ of error might have been brought to the Court of Appeals, and a copy filed there, which would have made it a stay of execution.

But recent decisions of the Supreme Court have determined that when the record has been remitted to the court below, and the writ of error directed to it, the entering the decree or judgment of the highest court in the court below, is to be taken as the time of rendering the judgment or passing the decree complained of. And that such decree [186]*186only becomes a final judgment in the sense of the twenty-third section of the judiciary act, when entered'in a court from which execution can issue. McGuire v. The Commonwealth, 3 Wall. 382; Green v. Van Buskerck, Ibid. 448.

No execution can issue from the Court of Appeals in New Jersey, and the rule laid down in the last case, therefore applies here.

The motion must be denied.

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Bluebook (online)

21 N.J. Eq. 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brumagim-v-chew-njch-1870.

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