Morse, Williams & Co. v. Baake

The opinion of the court was delivered by Collins, J. The judgment brought up was one entered in the Circuit Court of Atlantic county, upon the verdict of a jury rendered in a trial had before Allen B. Endicott, judge of the Court of Common Pleas of that county, holding the Circuit Court. At the time of the allowance of the writ the question of the constitutionality of the statute permitting, in certain cases, the holding of a Circuit Court by the judge of the Common Pleas was still unsettled, and doubtless the ground of allowance was that, if such statute should be held unconstitutional, any judgment resting on it would be altogether a nullity, and therefore within the reach of the prerogative writ of this court, notwithstanding the direction of the constitution (article 6, section 5, paragraph 3) that review of final judgments in the Circuit Court shall be by writ of error. The question having been settled in favor of the validity of the statute, in the case of Roofing Co. v. Leather Co., [592] 38 Vroom 566, decided in our court of last resort, it logically follows that the writ now before us has no legal support. It is argued that the record returned does not show the existence of the conditions authorizing the holding of the court as it was held, but the alleged defect concerns mere matter of procedure, as to which the record, if defective, is subject to amendment.- It should, moreover, be borne in mind that the order under which the Common Pleas judge holds the Circuit Court is a general one, and not one made in a particular cause. Pamph. L. 1900, p. 357, §§ 37, 38. As it is possible that the judgment recovered was regular, we are of opinion that it can be subjected to review in no other way than-by writ of error. The writ of certiorari will he dismissed, hut without costs.