Den ex dem. Rutherford v. Fen

Carpenter, J.

A writ of error properly lies only in case of common law proceedings, in actions commenced by writ, to review some supposed error in the final judgment of a court of record. It is true that the technical phraseology, consideratum est, is not necessary to constitute such judgment as will support a writ of error: it is sufficient if it be in its nature and effect a final judgment. Thus it lies upon nonsuit, there being a judgment for costs. Com. Dig. “ Pleader” ( 3 R. 7 ;) 2 Halst. 288. So it would seem on non pros, or discontinuance for the same reason, when the judgment has been entered of record. Mayor of Macclesfield v. Gee, 13 M. & W. 470, 474. In proceedings according to the course of the common law in courts of record, the rule seems to be that error will lie, and lie only where there is a final judgment, though it be for costs merely. There must be a judgment or an award in the nature of a judgment. 1 Archb. Pr. 230.

There is nothing in the case in the nature of a final judgment. No costs are recovered ; no judgment made up and signed, or which ought to have been entered of record and signed. Error has been assigned upon mere side bar rules, and those in relation to matters resting in the discretion of the court. There is no judgment, but the court having vacated the rule extending the demise which had been improvidently granted, then refused to continue the cause and dismissed the suit. The court refused to lend its aid to the plaintiff and dismissed the suit; because in the exercise of its discretion it chose to consider the cause discontinued by the unreasonable chasm in the proceedings of the plaintiff, the cause having slept for more than eighteen years. It is true had the defendant asked for, and the court have given judgment for costs, the matter might have stood, so far as the present motion is concerned, upon a different footing. A writ of error might lie in such case, although probably of no avail for the purpose sought by the plaintiff, as matters resting in discretion cannot be assigned for error.

*703 Evans v. Adams, 3 Green 373, and Norcross v. Boulton, 1 Har. 310 , were relied on as authorities in support of this writ. Those cases had proceeded to final judgment, and error was assigned upon the outbranehes of the record. Although difficult to reconcile them with the established principles regulating writs of error, still the view taken seemed necessary in order to preserve the right of review. Much however was said in the case of Evans v. Adams, to which I cannot subscribe, and particularly as to the grounds upon which writs of error there cited, had been sustained in this court, when not sustainable at common law. This court reviews and rectifies error in the Supreme Court, and it exercises this revising power solely by writ of error. Proceedings summary in their character are therefore the subject of review by writs of error, because writs of Certiorari to review such proceedings do not issue out of this court. Thus judgment of amercement' against a sheriff, a summary proceeding not according to the course of the common law, which is the case of Stansbury v. Squier, 2 South. 861 . Similar proceedings in the Pleas are reviewed in the Supreme Court, not by writ of error but by writ of Certiorari. Kline v. Pemberton, 2 Halst. 438; Lawrence v. Dickey, 7 Ib. 368. I am of the opinion that the writ should be quashed or dismissed.

The court dismissed the writ of error.

For Dismissal — Whitehead, Carpenter, Randolph, Speer, Schenck, Porter, Spencer, and McCarter — 8.

Contra — The Chancellor — 1.

Cited in Woodruff v. Chapin, 3 Zab. 559.