On appeal from the Supreme Court, whose opinion is reported in 124 N.J.L. 310.
For the appellants, Samuel Backer and Thompson & Lloyd (John Lloyd, Jr.).
For the respondent Rose LeBeck, Emerson Richards.
The opinion of the court was delivered by
BODINE, J. The appeal is from a judgment in certiorari affirming the Atlantic County Court of Common Pleas in reversing a judgment of the Recorder's Court of Atlantic City convicting the respondent of a violation of a zoning ordinance
in that she was alleged to have operated a boarding house in a restricted zone. If she did, the Supreme Court found that the property had been so operated long before the enactment of the zoning ordinance. If there was a right to a non-conforming use the conviction was improper.
The Court of Common Pleas instead of making an order for review allowed what appeared to be a writ of certiorari. Of course, the prerogative writs of the Supreme Court may not be exercised by other tribunals. Green v. Heritage, 64 N.J.L. 567; East Orange v. Hussey, 70 Id. 244. But the statute (N.J.S.A. 2:81-13) does confer upon the Court of Common Pleas the right to require a judgment to be certified to it for review within thirty days after the rendition in any city court within the county.
The Supreme Court properly regarded the proceedings as before the Court of Common Pleas for review. The entering of the order was an error of form and not of substance. The practice, however, should not be countenanced since confusion of terms is not desirable in legal procedure.
On September 9th, 1938, the defendant was found guilty but sentence was not imposed until December 20th, 1938, when the court made the following entry of the occurrence in its docket: "Def. appeared Dec. 20th, 1938, and was adjudged guilty and sentenced to pay a fine of $200 or be committed to County Jail for a period of 30 days." This was the final judgment which could be reviewed under the statute within thirty days. There was no effective action by the court declaring the consequences of the finding to the accused until sentence was imposed. Stewart v. Stewart, 93 N.J. Eq. 1.
Blackstone says, Book 4, p. 375, "For when, upon a capital charge, the jury have brought in their verdict guilty, in the presence of the prisoner, he is either immediately, or at a convenient time, soon after, asked by the court if he has anything to offer why judgment should not be awarded against him." Of course, it is common practice in criminal cases to withhold writ of error until sentence has been imposed; otherwise, there is no judgment. Stokes v. Schlacter, 66 N.J.L. 247.
The proceedings in the Court of Common Pleas were a review under the statute and, of course, did not ...