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Dillemuthe v. Efinger

Decided: June 2, 1941.

DAVID A. DILLEMUTHE, LLOYD HAUN AND GEORGE M. HEICHELBECK, PLAINTIFFS,
v.
KATHARINE EFINGER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF GEORGE H. EFINGER, DECEASED, DEFENDANT



On plaintiffs' motion to consolidate the above captioned cause with action instituted in Middlesex Court of Common Pleas by said Katharine Efinger, individually and as administratrix as aforesaid, against said Lloyd Haun and David A. Dillemuthe.

For the motion, Henry K. Golenbock.

Contra, David T. Wilentz.

Before Justice Heher, at the Sussex Circuit.

Heher

HEHER, J. Consolidation may not be had under R.S. 1937, 2:27-162, for the actions are not "pending in the same court."

Nor is the action depending in the Court of Common Pleas removable into the Supreme Court by writ of habeas corpus cum causa for the purpose of consolidation with the instant action pursuant to R.S. 1937, 2:27-206, as amended by chapter 233 of the laws of 1938. Pamph. L., p. 536. While at common law this writ issued of common right for the removal of a civil cause from an inferior court of record, under our

statute it is essentially discretionary "for the correction of abuse." Abuse of the process resulted in drastic statutory limitation, and the writ has fallen into disuse. It is available "when for any reason the Circuit Court or Court of Common Pleas cannot be relied on to do justice, or a change of venue is proper, but it ought only to be allowed for good cause shown." Van Hoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 N.J.L. 189; Chandler v. Monmouth Bank, 9 Id. 101. Removal for the mere purpose of consolidation is not in the particular circumstances warranted in the law. The legislature has spoken on the subject of consolidation; and it is permissible only where the actions depend in the "same court." The statute is not cumulative but exclusive of such pre-existing inherent authority as courts of general jurisdiction may have had at common law. Expressio unius est exclusio alterius. Compare Chandler v. Monmouth Bank, supra. I have not been cited to any case before or after the adoption of this act in which there was a removal of a cause from an inferior court for the purpose of consolidation. It is not urged that essential justice demands the removal.

It is to be noted that, by the act of 1938, supra, removal is accomplished by certiorari and, as auxiliary thereto, such other writs or process as may be necessary to effectuate it.

Motion denied, without ...


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