On respondent's motion to dismiss appeal from judgment of the Monmouth Common Pleas and appellant's motion for a writ of mandamus.
For the appellant, Samuel Craig Cowart.
For the respondent, McDermott & Finegold.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. Respondent moves to dismiss the appeal in this action of ejectment upon two grounds, viz.: (a) that the appeal has not been prosecuted in accordance with the rules of court, and (b) that appellant obtained and argued in the Common Pleas a rule to show cause why a new trial should not be granted, without a reservation of exceptions, and the order discharging the rule is therefore res judicata in respect of the matters embodied in the exceptions.
Appellant counters with a motion for a mandamus requiring the trial judge "to settle the state of the case on appeal."
The trial judge directed a verdict of possession in favor of respondent, and nonsuited appellant on his counter-claim for breach of contract; and judgment thereon was entered on October 3d, 1939. On the following day, the rule to show cause was allowed on appellant's motion. There was no reservation of exceptions. On October 10th, the rule was discharged after hearing. The notice of appeal was filed the next day; and on the ensuing December 4th, the grounds of appeal were filed with the clerk of the lower court. Nothing has been done since.
It is conceded that the grounds of appeal were all embraced within the reasons assigned -- and determined, also -- on the motion for a new trial; and so we are constrained to dismiss the appeal, since the determination of the rule to show cause is a conclusive adjudication of the questions raised here. The subject-matter has thereby become res judicata. Faragasso v. Introcaso, 98 N.J.L. 583; Goekel v. Erie Railroad Co., 100 Id. 279; Margolies v. Goldberg, 101 Id. 75; Boniewsky v. Polish Home of Lodi, 103 Id. 323, 335; Catterall v. Otis Elevator Co., 103 Id. 381; Stiles v. MacLean, 103 Id. 537; Cleaves v. Yeskel, 104 Id. 497; Ashhurst v. Atlantic Coast Electric Railroad Co., 66 Id. 16; Holler v. Ross, 67 Id. 60; Clark v. Swersky, 3 N.J. Mis. R. 432; Atkins v. Wellman, 2 Id. 282. See, also, Finley v. Handley, 50 N.J.L. 503; Meeker v. Boylan, 27 Id. 262.
The appeal is accordingly dismissed, and the motion for a mandamus ...