Smith v. Ocean Castle, No. 11, Knights of the Golden Eagle

The opinion of the court was delivered by Dixon, J. A judgment of the Court of Common Pleas of Atlantic county, on appeal from a Justice’s Court, rendered in favor of the original plaintiff, was removed by certiorari into the Supreme Court, and there it was adjudged that the judgment of the Common Pleas should be reversed, with costs, that the record should be remitted and a judgment of nonsuit entered. The propriety of this adjudication is now before us for review on writ of error. The plaintiff first contends that a judgment of affirmance should have been rendered. On this point, we agree with the views expressed in the Supreme Court, holding that, before seeking redress in the courts of the state, the plaintiff was bound, by the constitution of the order to which he belonged, to carry his complaints against the “ Castle ” to the higher authorities of the society. A nonsuit was, therefore, properly directed. The plaintiff further contends that it was unlawful to award costs on reversal of the judgment of the Common. Pleas. This contention rests on the ninety-ninth section of the Justice’s Court act (Gen. Stat, p. 1883), providing that if a judgment given by virtue of that act be reversed on certiorari, the plaintiff in certiorari shall not be entitled to any costs. But by a subsequent act relative to the writ of certiorari, approved April 6th, 1871 (Gen. Stat, p. 368, § 8), it was enacted that the court in any certiorari may, in its discre [200] tion, give judgment for costs for either party. It is urged that this law is not applicable to cases within the Justice’s Court act, but we think the words are too clear and too comprehensive to admit of such a limitation, especially as no dictate of justice is contravened. The Supreme Court, therefore, had the power to award costs, and plainly the case was a proper one for its exercise, since the determination of the court not only reversed the judgment of the Common Pleas, but finally decided the cause in favor of the defendant. Lehigh Valley Railroad Co. v. McFarland, 15 Vroom 674. So much of the rule entered in the Supreme Court as directed that the record be remitted to the Common Pleas, should be annulled. In obedience to the writ of certiorari, the record of the cause was removed to the Supreme Court. Hinchman v. Cook, Spen. 271; Welsh v. Brown, 13 Vroom 323. That court, having determined what final judgment should be rendered, ought itself to have ordered such judgment to be entered upon the record. 2 Saund. 101 w, note z; Hoxsey v. City of Paterson, 10 Vroom 489. Being competent to execute the judgment, the Supreme Court should also award execution thereon. Tidd Prac. 1137; 2 Saund. 101 z; Anonymous, Penn. *753; note to Gardner v. State, 1 Zab. 561; Welsh v. Brown, ubi supra. This slip being harmless, it should not prevent the allowance of costs in this court to the defendant in error. With the exception mentioned, the judgment of the Supreme Court is affirmed, with costs. For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Gummere, Ludlow, Mague, Yan Syckel, Baric alow, Bogert, Dayton, Hendrickson, Nixon. 13. For reversal—None.