Furman v. Motley

The opinion of the court was delivered by Gummere, J. By section 79 of the Justices’ Court act an appeal is given to the Court of Common Pleas from all judgments obtained before any justice of the peace except such [175] as have been given by confession. By the ninety-sixth section of the act it is provided “that where the justice has jurisdiction, no judgment hereafter to be rendered in any Court for the Trial of Small Causes, from which an appeal is given to the Court of Common Pleas, shall be removed into the Supreme Court by certiorari for the correction of any supposed error therein; but the party thinking himself aggrieved shall have relief upon the appeal only, and that both as to matter of law and matter of fact.” The judgment brought up by this writ is not one which was given by confession, and therefore the sole method of review is by appeal, unless the justice who rendered it was without jurisdiction. In -that situation of affairs the remedies by appeal and certiorari are concurrent. Ritter v. Kunkle, 10 Vroom 259; Drake v. Berry, 13 Id. 60; Hillman v. Stanger, 30 Id. 191. The prosecutor bases his right to review the judgment now before us by certiorari upon the ground that the justice was without jurisdiction to render it. But, assuming this to be the case, the record sent up with the writ discloses that this remedy is no longer open to him. After the rendition of the judgment he had the option of reviewing it by either of the methods mentioned. Exercising that option he removed it into the Court of Common Pleas by appeal. When the appeal came on to be heard it was dismissed for want of prose-' cution. He was entitled to have the judgment of the Small Cause Court reviewed either by appeal or by certiorari, as he should select, but not by both methods. Having selected the remedy by appeal his right to review by certiorari no longer exists. Illingworth v. Rich, 29 Vroom 507. The writ of certiorari should be dismissed, with costs to the defendant.