Chavers v. McCall

Decided January 9, 1942

Decided 1942-01-09

*596 Per Curiam.

¶1 The judgment appealed from -will be affirmed.

¶2 For affirmance — The Chancellor, Chief Justice, Case, Bodine, Heher, Perskie, Porter, Dear, Wells, WolfsKeil, Rafferty, Hague, Thompson, JJ. 13.

¶3 For reversal — None.

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Posture: On appeal from a judgment of the Supreme Court, which court filed the following per curiam: The action of the Circuit Court which we are asked to review under this writ of certiorari is an order opening a judgment for plaintiff in that court, after defendant had defaulted at the trial; a default for which defendant's attorney seems to have been responsible. The default was opened on terms and the court action was in the exercise of the judicial functions in the course of the common law. It is settled by our decisions that certiorari does not lie to a Circuit Court, or a Court of Common Pleas, in the exercise of its judicial functions in the course of the common law, but the remedy is by appeal (now substituted for writ of error) after final judgment. Taylor Provision Co. v. Adams Express Co. , 72 N.J.L. 220 ; 65 Atl. Rep. 508 ; Eder v. Hudson Circuit Court, 104 Id. 260 ; Albert v. Hart, 44 Id. 366 ; Sonzogni v. Sansevere, 6 N.J. Mis. R. 675 . Following the procedure laid down by the Court of Errors and Appeals in the Taylor case, supra , the writ of certiorari herein will be dismissed, with costs.