Neubauer v. McCutcheon , 98 N.J.L. 94 ( 1922 )

The opinion of the court was delivered by

Kalisch, J.

The prosecutor seeks to review, by writ of bertiorari, the validity of an order made by the Passaic Circuit Court, adjudging, that the sum of two thousand seven hundred and twenty-eight dollars ($2,728), deposited by John G-rossgebauer, the defendant in this proceeding, in lieu of bail, with a Supreme Court commissioner, in order to obtain the release from custody of John J. Arians, who was then under arrest by virtue of a capias ad respondendum sued out of the above-mentioned court by Anton Neubauer, the prosecutor herein, “be returned to the said John Grossgebauer or his lawful attorney.”

In Taylor Provision Co. v. Adams Express Co., 72 N. J. L. (at p. 221), Mr. Justice Dixon, speaking for the Court of Errors and Appeals, said: “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.”

The o.rder made by the Circuit Court in the proceeding there has settled definitely the rights of the parties, and under the case of Knight v. Cape May Sand Co., 83 N. J. L. 597, and the cases there cited, the order m,ade was in its nature a final judgment from which only an appeal lies.

The writ of certiorari was improvidently granted and must be dismissed.