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City of Atlantic City v. Lebeck

Decided: March 12, 1940.

CITY OF ATLANTIC CITY AND JAMES W. PETERSON, SUPERINTENDENT OF BUILDINGS OF THE CITY OF ATLANTIC CITY, COMPLAINANTS-PROSECUTORS,
v.
ROSE LEBECK ET AL., RESPONDENTS



On certiorari.

For the prosecutor, Samuel Backer and Thompson & Hanstein (John Lloyd, Jr., of counsel).

For the respondent, Emerson L. Richards.

Before Justice Porter, at chambers.

Porter

PORTER, J. The writ of certiorari brings up for review proceedings in the Common Pleas Court of Atlantic county reversing a judgment of the Recorder's Court of Atlantic City.

Respondent Rose LeBeck was charged by the superintendent of buildings, Mr. Peterson, with maintaining a boarding and rooming house in violation of the zoning ordinance. She was found guilty after a hearing by the recorder who imposed a fine of $200 or in default thereof that she be committed to the county jail for thirty days.

An appeal was taken from this judgment to the Common Pleas Court where after hearing, Judge Corio under date of March 29th, 1939, reversed the judgment and filed a written memorandum reviewing the testimony and the law and gave reasons for his conclusions.

The prosecutor argues several points in support of its contention that the action of the Common Pleas Court should be reversed. First -- that the court was without jurisdiction to issue a writ of certiorari. We think the court did have jurisdiction to review the proceedings not by certiorari but by an appeal under R.S. 2:81-13. This statute provides for review of municipal court proceedings, &c., by the Supreme Court by writ of certiorari or by appeal to the Pleas. The latter course was taken. While it is true that the papers in the case are entitled in certiorari still there was no such writ issued by the Pleas. If treated as an appeal, which we conclude that actually it was, the court had power and jurisdiction to review under the statute in question.

It is next argued under point 2 that the Pleas had lost jurisdiction because the appeal was not taken within thirty days after the entry of judgment as required by the statute. While it is true that the recorder found the respondent guilty on September 9th, 1938, she was not in fact in court for sentence until December 20th, 1938. This being a criminal offense the presence of the defendant was essential for the proper entry of judgment of conviction and the imposition of sentence. The appeal was taken within thirty days of that time.

The third point is that this being a certiorari proceeding the procedure was fatally defective because no reasons for reversal or assignments of error nor proper notice of hearing were filed or given. Having concluded that the proceedings were not in certiorari but on appeal as already stated it follows that the proceedings were not defective as alleged. Moreover, the respondent says that notice of hearing was given and also that reasons were in fact filed.

The fourth point is that the judge of the Pleas was in error in reversing on the ground that the complaint made by Mr. Peterson was improper ...


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