Terhune v. Reed

The opinion of the court was delivered by Port, J. This writ brings up an order of the Court of Quarter Sessions of the county of Bergen made on a conviction on a verdict of a jury in that court of the prosecutor of being a disorderly person, in that he neglected and refused to support and care for his family, and that, by reason thereof, his family had become chargeable upon the borough of Park Ridge. The objections go to the validity of the order of the Court of Quarter Sessions made on the verdict of the jury. The objections are stated as follows: First. Because the order does not adjudge the plaintiff in error to be a disorderly person. Second. Because the order does not direct the plaintiff in error to pay any .specific amount to the defendant in error for the support of his wife. [79] Both of these objections are well taken. The order is clearly defective. It should adjudge formally on the verdict of the jury, in accordance with the statute. Pamph. L. 1898, p. 948, § 21; O’Shaughnessy v. McLorinan, 14 Vroom 410. This of necessity requires the vacation of the order of the Quarter Sessions. There was a contention in this case also that the order of the justice, upon the conviction appealed from to the Quarter Sessions, was defective and should be vacated. But we do not think that this order should be considered on this application. Upon an appeal to the Quarter Sessions, in cases of this nature, under the Disorderly act, the trial is de novo, and as if the proceeding had been originally commenced in that court. McLorinan v. Ryno, 20 Vroom 603. And, while some suggestion is made in the case of O’Shaughnessy v. McLorinan, supra, that the order of the justice might be set aside as well as the order of the Quarter Sessions, we do not think that the practice requires this course to be pursued. We think that the appeal is still pending in the Quarter Sessions after the order of that court has been vacated here, and that the record should be remitted to that court for such proceedings thereon as are necessary. The affidavit here was sufficient to give jurisdiction to the justice and to the Quarter Sessions on appeal. Gedney v. Dey, 15 Vroom 576; Heller v. Brown, 28 Id. 634. There was no error in the proceedings brought up in this case up to and including the verdict. The only error is in the judgment entered upon it. This error does not necessitate a new trial. It simply necessitates a vacation of the judgment, with a direction to remit the record to the Quarter Sessions that it may make such order upon the verdict of the jury as is lawful and required under the statute. This is the practice settled in the case of Stokes v. Hardy, 45 Vroom 851. A judgment may be entered accordingly.