Decided: January 27, 1939.
TERESA MAGIERA, PLAINTIFF-PROSECUTOR,
CELIA SOBAN, DEFENDANT-RESPONDENT
On motion to dismiss certiorari.
For the plaintiff-prosecutor, James N. Pappas (Frank J. Cavico, of counsel).
For the defendant-respondent, Harris & Harris (Herman J. Harris, of counsel).
Before Justices Case, Donges and Porter.
[121 NJL Page 609]
The motion before us is to dismiss the writ of certiorari heretofore allowed in this case on the ground that a bond was not filed.
It appears from the briefs before us that the prosecutor obtained a judgment against the respondent in the Orange District Court some sixteen years ago, that a rule to show cause based on allegations of fraud was allowed, following which an order was made setting aside the judgment.
A writ of certiorari was allowed by this court to review the action of the District Court in setting aside the judgment. It will be noted that Magiera, the plaintiff below, is the prosecutor of this writ. The sole question before us on this motion is whether or not the statute requires the filing of a bond where a writ of certiorari was allowed, as in the instant case, upon application of the plaintiff in the action in which the order was made which is sought to be reviewed.
The statute in question, R.S. 2:32-217, 218, in our view, does not distinguish between plaintiffs or defendants in the action below, nor does it relate to judgments only. It provides that a bond is required from "the party applying" for the removal of "a judgment, order or proceeding of a District Court."
While we feel obliged, therefore, to rule that a bond is necessary in the instant case, we will grant the motion to dismiss the writ only in the event that the statutory bond be not filed forthwith.