Taylor Provision Co. v. Adams Express Co.

The opinion of the court was delivered by

Dixon, J.

In a common law action on contract, brought in the Mercer Circuit Court, the defendant obtained a rule requiring the plaintiff to show cause why the service of summons and declaration should not be set aside. On return' of the rule it was dismissed, and thereupon the defendant sued out a writ of certiorari from the Supreme Court to reverse the dismissal. The Supreme Court, however, on a consideration of the merits of the original rule, affirmed the proceedings in the Circuit Court, and such affirmance is now brought here by writ of error.

The action of the Supreme Court was throughout irregular.

*221 The Circuit Court is a constitutional court of record, having general jurisdiction, over common law actions inter partes and proceeding therein according to the course of the common law. As such its orders are reviewable, not by certiorari, but by writ of error, and only after final judgment. Groenvelt v. Burwell, 1 Salk. 263; Bac. Air., tit. “Error” A; 1 Arch. Pr. 208; Den, Rutherford, v. Fen, 1 Zab. 700; State v. Wood, 3 Id. 560; Cooper v. Vanderveer, 18 Vroom 178.

The writ of certiorari should not have been allowed, and after allowance it should have been dismissed. It conferred on the Supreme Court no authority to pass judgment upon the proceeding's in the Circuit, and consequently the affirmance thereof was illegal.

The affirmance is reversed and the Supreme Court is directed to dismiss the writ of certiorari as improvidently granted.

As the certiorari was allowed at the instance of the plaintiff in error, it should not recover any costs in this court.

For affirmance — None. For reversal — Ti-ie Chancellor, Chiee Justice, Dixon, Garrison, Garretson, Pitney, Bogert, Vredenburgh, Green, Gray. 10.