El Mora Realty Co. v. Griffin

126 A. 639, 2 N.J. Misc. 1187, 1924 N.J. Sup. Ct. LEXIS 28

• Court: Supreme Court of New Jersey
• Decided: November 24, 1924
• Status: Published

Opinion

Per Curi.ul

The plaintiff instituted an action of ejectment in the Union County Circuit Court. The case was referred to and tried by the juclgfc of the Court of Common Pleas for the county of Union. A verdict was rendered for the defendant. Upon the plaintiff's application a rale to show cause was applied for and allowed why the verdict should not be set aside. This rule reserved, however, the exceptions taken to certain rulings of the trial court. Notwithstanding the reservation of these questions, they were all argued and considered upon the hearing of1 the rule to show cause. The rule was discharged. The questions reserved under the rule are now made the grounds of appeal to this, court. The respondent invokes the case of Faragasso v. Introcasso, 1 N. J. Adv. R. 1034 (not yet officially reported), as a bar to the consideration upon this appeal of the same questions passed upon by the trial judge under the rule. We think this position well taken. Ais was pointed out in the opinion of Faragasso v. Introcasso, supra, the consideration of the questions raised upon the appeal would be tantamount to reviewing' the action of the trial court in discharging the rule. Such judicial action has been frequently held not to be reviewable. When a party argues under a rule the questions reserved in the rule, his action is a waiver of the reservations made in the rule. His action will be deemed an abandonment of the exceptions reserved. In the case referred to (Faragasso v. Introcasso). the appeal was for this reason dismissed. Eor the same reason, and following the established practice, the present appeal is dismissed, with costs.