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Sagarese v. Holland

Decided: January 31, 1936.

MICHAEL A. SAGARESE, RELATOR-APPELLANT,
v.
ALBERT H. HOLLAND ET AL., RESPONDENTS



On appeal from the Supreme Court.

For the appellant, Minturn & Weinberger (Hyman Halpern, on the brief, and Harry H. Weinberger, of counsel).

For the respondents, Orville V. Meslar (Elmer King, of counsel).

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. Relator-appellant having at the general election, November 4th, 1930, been elected a justice of the peace, in the first ward of Morristown, in the county of Morris, appeared before the Common Pleas judge and county clerk of Morris county on April 17th, 1931, tendering one or more bonds but refusing to swear to a statement as required by Pamph. L. 1931, ch. 131, providing, so far as here pertinent: "No person heretofore or hereafter so notified, shall qualify if he has been convicted of a misdemeanor or higher crime."

Upon appellant's refusal before referred to the judge of the Court of Common Pleas refused to approve of the bonds or either of them or to proceed with any further qualification of said appellant.

Thereupon application was made to the Supreme Court for a writ of mandamus to compel the said judge and the clerk to approve of one of the two bonds offered by the appellant and proceed to permit appellant to qualify himself to assume the office to which he had been elected by taking and making the required oaths, but excluding the proof required of him under Pamph. L. 1931, ch. 131, supra.

The Supreme Court directed the issuing of an alternative writ, because, as it said, "the legal right is not clear and the facts which well may be pertinent are not definitely settled." Such writ issued setting up, extensively and profusely, the appellant-relator's contentions, both legal and factual, his right to have a peremptory writ.

To this returns were made by both respondents contesting the legal and, in some respects, the factual right claimed. To these the relator replied.

The matter was then brought on before a Circuit Court judge and a jury in Morris county and at such trial the essential facts seem not to have been in dispute and the trial judge might well, we think, have directed the jury as to their findings of fact. This he seems not to have directly done, but, going beyond this passed upon the constitutionality of Pamph. L. 1931, ch. 131, supra, and Pamph. L. 1931, ch. 132, thereby settling and determining not only the facts but the questions of law then pending before the Supreme Court. He directed the jury to "return a verdict in favor of the respondents," and signed and returned into the Supreme Court a postea certifying -- "the jury by direction of the court rendered a general verdict in favor of the respondents."

From the record before us it is difficult to determine what we are asked to review because it brings to our attention no judgment and the appeal might therefore be dismissed.

The records of the clerk of the Supreme Court disclose that a final judgment was entered, apparently as a matter of course, upon the postea before referred to, the adjudicating and ordering portion of which is:

"Whereupon it is adjudged that the alternative writ of mandamus be and the same is hereby dismissed and that the respondents * * * do recover of the ...


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