French v. Higgins

48 A. 1007, 66 N.J.L. 128, 37 Vroom 128, 1901 N.J. Sup. Ct. LEXIS 183

• Court: Supreme Court of New Jersey
• Decided: February 25, 1901
• Status: Published

Opinion

Memoranda of the court by

Fort, J.

This is a motion to open a judgment entered on a postea in the above-entitled cause and to hear the case here as if tried at bar and to pronounce judgment thereon.

This case was tried at the Camden Circuit, before a justice of the Supreme Court holding that Circuit, by consent^ a jury being waived. It appears that in lieu of evidence the case was submitted upon agreed facts.

It was the duty of the judge to make a determination upon the agreed facts precisely as if the facts so agreed upon were the result of his own findings from the evidence of witnesses taken in open court before him.

The only possible criticism on the postea returned is in the fact that the agreed facts are returned as a part of it, while, as a matter of fact, they are no rightful part thereof.

Evidence taken in a cause is no part of the postea, nor are the names of the witnesses sworn.

The fact that a case is tried at the Circuit on the record sent down on agreed facts does not make it a case tried at bar — it is still a Supreme Court issue, tried at Circuit.

The finding upon the agreed facts by the justice takes the place of the verdict of the jury, and the judgment was rightly entered on the postea.

Upon the justice reporting his findings, either of two courses is open for the review thereof — first, apply, within six days, for a rule to show cause why á new trial should not be granted, which, if allowed, will be heard by the Supreme Court as in the case of a verdict; or second, take a writ of error to the Court of Errors to review the 'errors of law upon the exceptions taken at the trial or to the conclusions of law of the justice which have been allowed and sealed. Columbia Delaware Bridge Co. v. Geisse. 9 Vroom 39; Mott v. Mills, 30 Id. 15.

The application is denied.