Five Mile Beach Lumber Co. v. Friday

66 A. 901, 75 N.J.L. 175, 46 Vroom 175, 1907 N.J. Sup. Ct. LEXIS 106

• Court: Supreme Court of New Jersey
• Decided: June 10, 1907
• Status: Published

Opinion

The opinion of the court was delivered by

Swayze, J.

After a trial of this case in the Cape May Circuit, the defendant obtained a rule for a new trial, reserving exceptions. Upon the argument the plaintiff learned that the only reasons relied upon were the alleged errors covered hy the exceptions that had been reserved. Thereupon the plaintiff, relying upon the decision of this court in Holler v. Ross, 38 Vroom 60, moved to dismiss the rule. Instead of granting the motion the court amended the rule by eliminating the reservation of exceptions, the benefit of which the defendant waived, and then granted a new trial. It is this order which the plaintiff now seeks to review by certiorari.

The Circuit Court is a constitutional court of record having general jurisdiction over common law actions inier partes, and proceeding therein according to the course of the common law. As such its orders are reviewable, not by certiorari, but by writ of error, and only after final judgment. Taylor Provision Co. v. Adams Express Co., 43 Vroom 220.

The proceedings in an action to enforce a mechanics’ lien proceed according to the course of the common law; the statute expressly enacts that the practice, proceedings and pleadiiigs thereon shall be conducted, and the judgment entered, as in suits in said Circuit Court to recover money dua on contract. The regular method of review is by writ of error. Numerous instances are to be found in our reports. It is sufficient to cite a few of the more recent. Barnaby v. Bradley & Currier Co., 31 Vroom 158; Naylor v. Smith, 34 Id. 596; Ennis v. Eden Mills Paper Co., 36 Id. 577; Murphey-Hardy Lumber Co. v. Nicholas, 37 Id. 414; Turner v. Wells, 38 Id. 572; Buckley v. Hann, 39 Id. 624; Smith v. Colloty, 40 Id. 365.

So uniform a practice indicates that the method of reviewing proceedings in suits to enforce mechanics’ liens is the same as in any common law action in the Circuit — by writ of error after final judgment, and not by certiorari.

If it were in our power to award the writ, we ought not to do so in this case. The Circuit Court has control of its own rules and may correct any inadvertence or mistake therein. 1 Tidd Pr. (3d Am. ed.) *506.

The motion is denied, with costs.