Haden v. Bamford Brothers Silk Manufacturing Co.

Supreme Court of New Jersey

Haden v. Bamford Brothers Silk Manufacturing Co.

63 A. 7, 73 N.J.L. 308, 44 Vroom 308, 1906 N.J. Sup. Ct. LEXIS 174

CourtSupreme Court of New Jersey

DecidedFebruary 26, 1906

StatusPublished

Cited by1 cases

This text of 63 A. 7 (Haden v. Bamford Brothers Silk Manufacturing Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Haden v. Bamford Brothers Silk Manufacturing Co., 63 A. 7, 73 N.J.L. 308, 44 Vroom 308, 1906 N.J. Sup. Ct. LEXIS 174 (N.J. 1906).

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Opinion

[309]*309The opinion of the court was delivered by

Fort, J.

A judgment was obtained at the Passaic Circuit and a writ of error taken to this court. After the writ was returned it was, on the motion of the attorney of the plaintiff in error, dismissed without prejudice. Thereupon the plaintiff who had prosecuted the writ of error and secured its dismissal as aforesaid applied to the judge of the Circuit Court for a rule to show cause why a new trial should not be granted. The rule recites that the application was made “upon the ground of newly-discovered evidence and upon reading the affidavit of Herman Planter duly filed,” but the rule is that the plaintiff should show cause why the judgment in his favor should not be set aside, &c.

Leave was given to take testimony under the rule. After the proofs had been taken, and. after hearing on the rule, the Circuit Court discharged the rule. The defendant then sued out a second writ of error and has assigned error on the exceptions taken at the trial. It is these assignments which it is now moved to strike out on the ground that the exceptions wore waived by the applying for and granting of the rule to show cause.

We think the assignments must be stricken out. This ease is clearly within the opinion of this court in Finley v. Handley, where jVIr. Justice Van Syckel discusses fully the effect of applying for and having granted a rule to show cause why a new trial should not be granted. He then says, in reviewing the history of the provision of our Practice act on this subject, that “the intention was that in every case the granting of a rule to show cause should be a waiver of all bills of exception except on points expressly reserved in the rule.” Finley v. Handley, 21 Vroom 503; Mott’s Practice act, p. 110, § 214; Pamph. L. 1903, p. 593.

The granting of a rule to show cause why a new trial should not be granted, whether the rule granted be general or special, and whatever the ground of the application for the rule may be, is a waiver of all bills of exception held by the party appljdng for the rule, except as to such exceptions as are expressly reserved in the rule.

[310]*310In the ease'at bar’the rule applied for and granted'was general, no exceptions were reserved, and hence they were waived.

An order will be made granting the motion to strike out the assignments of error based upon the waived exceptions.

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[309]*309The opinion of the court was delivered by

Fort, J.

A judgment was obtained at the Passaic Circuit and a writ of error taken to this court. After the writ was returned it was, on the motion of the attorney of the plaintiff in error, dismissed without prejudice. Thereupon the plaintiff who had prosecuted the writ of error and secured its dismissal as aforesaid applied to the judge of the Circuit Court for a rule to show cause why a new trial should not be granted. The rule recites that the application was made “upon the ground of newly-discovered evidence and upon reading the affidavit of Herman Planter duly filed,” but the rule is that the plaintiff should show cause why the judgment in his favor should not be set aside, &c.

Leave was given to take testimony under the rule. After the proofs had been taken, and. after hearing on the rule, the Circuit Court discharged the rule. The defendant then sued out a second writ of error and has assigned error on the exceptions taken at the trial. It is these assignments which it is now moved to strike out on the ground that the exceptions wore waived by the applying for and granting of the rule to show cause.

We think the assignments must be stricken out. This ease is clearly within the opinion of this court in Finley v. Handley, where jVIr. Justice Van Syckel discusses fully the effect of applying for and having granted a rule to show cause why a new trial should not be granted. He then says, in reviewing the history of the provision of our Practice act on this subject, that “the intention was that in every case the granting of a rule to show cause should be a waiver of all bills of exception except on points expressly reserved in the rule.” Finley v. Handley, 21 Vroom 503; Mott’s Practice act, p. 110, § 214; Pamph. L. 1903, p. 593.

The granting of a rule to show cause why a new trial should not be granted, whether the rule granted be general or special, and whatever the ground of the application for the rule may be, is a waiver of all bills of exception held by the party appljdng for the rule, except as to such exceptions as are expressly reserved in the rule.

[310]*310In the ease'at bar’the rule applied for and granted'was general, no exceptions were reserved, and hence they were waived.

An order will be made granting the motion to strike out the assignments of error based upon the waived exceptions.

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Bluebook (online)

63 A. 7, 73 N.J.L. 308, 44 Vroom 308, 1906 N.J. Sup. Ct. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haden-v-bamford-brothers-silk-manufacturing-co-nj-1906.

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