Cohen v. Gartner

[111] The opinion of the court was delivered by Magie, J. Prosecutor has brought before us by this writ of certiorari a judgment against him rendered in a District ■Court in a suit where the demand in controversy exceeded $200. The suit in 'that court was justified by the “Act relative to the jurisdiction and practice of District Courts in this state,” approved March 27th, 1882. Rev. Sup., p.‘¿Ql. It has been held that this judgment can only be reviewed by certiorari. Gartner v. Cohen, 22 Vroom 125. The return shows .several exceptions taken in the court below and sealed by the District Court judge. Prosecutor now alleges that other exceptions were taken, and he asks that ■a rule be entered requiring that judge, by way of further return, to seal and send to this court those other exceptions witli the evidence bearing thereon. The practice of sealing exceptions as the ground of review of the rulings excepted to, has hitherto been confined to cases where the review is by writ of error. But the thirteenth section of the act above referred to, in prescribing a review by certiorari, provides that “ no reversal for error of law shall be made or a new trial granted for the admission or rejection of evidence or the refusal of the district judge to grant a new trial, unless exception to the ruling of the court below was taken at the trial and is presented to the court in a bill of exceptions sealed by the judge.” This provision is all that the act contains respecting this important change in the proceeding to review by certiorari. It expressly requires an exception to be taken, to be sealed by the judge, and to be presented to the court of review. There is no express requirement that the judge shall seal the exceptions taken, such as is contained in section 242 of the Practice act (Rev., p. 8S6), nor any express provision for the return of the bills of exceptions with the record, like that contained in section 245 of that act (Rev., p. 887); but I apprehend it can hardly admit of a doubt that by the terms of this section a duty to seal exceptions regularly taken devolves on the judge, and that, if sealed exceptions are included in the [112] return, they are to be taken in this court as duly taken, sealed and presented. Whether other exceptions taken and sealed may not also be here presented need not be decided. The present application is not for a mandamus to compel the judge to perform the duty which I have suggested the statute imposes on him. It is for a rule requiring him to amend the return by (1) sealing, and (2) returning exceptions set out verbatim. Counsel bases his motion on the terms of Rule 52 and the thirteenth section of the act above mentioned. The fifty-second (formerly fifty-third) rule has long ago been settled not to permit this court to require from an inferior tribunal, whose adjudication has been brought here by certiorari for review, a specific return. The proper practice is to call on the court below to certify as to the matter alleged to have been omitted from the record or to have occurred in the proceedings. Scott v. Beatty, 3 Zab. 256 ; Moore v. Hamilton, 4 Id. 532; Parsell v. State, 1 Vroom 530; Pinkney v. Ayres, 1 Zab. 694. The thirteenth section of the act in question does not operate to change this practice. If its provisions limit our review to points on which a sealed exception has been presented here, there is no power to bring before us such exceptions other than those powers which we exercise generally in furtherance of a review by certiorari. The resnlt is that, there being no power in this court, by a mere rule, to compel a district judge to seal an exception, and a rule requiring the return of specific exceptions being improper, the motion must be denied. If the allegation of diminution was to the effect tlkit exceptions duly taken and sealed had been put on the files of the District Court but had not been sent up with the record, it would seem that it would be proper to rule that court to certify whether such exceptions were taken, sealed and filed, and if so, to return them.