Van Renselaer v. Whiting

Martin Ch. J.: We do not consider it necessary to discuss the question whether certiorari will lie in cases like the present, as upon the merits we think the writ must be dismissed» The effect of vacating the judgment as J. Tallman Whiting was to vacate it as to the other defendant also; and there is now no judgment in the case. The parties have therefore now all the rights in the Circuit Court which they would have in any case of the vacation of a judgment. Where the Circuit Courts have power to set aside verdicts, grant new trials and vacate judgments, it is a discretionary power, the exercise of which we can not review» The present case comes within this principle. The certiorari must be dismissed, with costs. Christiancv and Campbell JJ. concurred. Manning J.: The order in terms sets aside the judgment as to J'» T. Whiting only. I think it should have set it aside as [452] to both, defendants, and granted a new trial. My brethren think that is the effect of the order, but it does not so read. The only remedy in cases of this description, where •an error has been committed that can be reached by this 'Court, it seems to me is by mandamus. Writ dismissed.