Citation Numbers: 47 N.J.L. 178
Judges: Beasley
Filed Date: 6/15/1885
Status: Precedential
Modified Date: 9/9/2022
The opinion of the court was delivered by
This was a suit in the Inferior Court of Common Pleas of the county of Monmouth, and 'in the course of the proceedings a motion was made by the
In the briefs of the respective counsel the only question discussed is that touching the validity of the order made in the court below, but it is obvious that the point thus elucidated is in no wise presented to this court so that it can be considered ■or determined. The order in, question is no part of the record, and is, consequently, not placed under the supervisory power of this tribunal. It is, by the express provision of the Practice act, only when a motion to strike out a pleading prevails that the order of the court can, at the request of the party against whom it presses, be entered on the record so that error may be assigned upon it. Rev., p. 868, § 132. But when the pleading is not struck out, the rule of court denying the motion to expunge does not become, nor can it in anywise be made, a part of the record, and consequently it is not susceptible of being reviewed in this court. Such a rule can no more be supervised by this court than can an order of an inferior court either refusing or granting a party time to file a •declaration or plea.
But there is a second fundamental error in this proceeding. Even if the order in question could be put under the cognizance of this court, such course could not be taken until after final judgment. A writ of error will not run until the con■clusion of the course of law in the court of first instance. The most serious vexation and delay would be attendant upon the opposite rule.
Therefore the writ of error in the present case must be dismissed.