Handwerk v. Town of Guttenberg

The opinion of the court was delivered by Swayze, J.

This is an action by the same men who sned to recover their compensation as “ordinance officers” of Guttenberg, and by one other who was not an ordinance officer. All were appointed members of the police force under the ordinance of December, 1913. The present suit is for the salaries of the policemen from the time judgment was entered in the Supreme Court, on April 24th, 1914, to the time when the police department was abolished in January, 1915. The only new question to be considered is whether the appeal to this court continued the stay of the certiorari, notwithstanding the judgment of the Supreme Court. No such contention would have been made under the former practice, *182 when the judgment of the Supreme Court could only be reviewed by writ of error, which in legal effect was a new suit. Lantz v. Hightstown, 46 N. J. L. 102. It seems to be thought that the provision of the new Practice act that “an appeal is a step in the cause” operates to continue the stay. This is a mistake. The judgment of the Supreme Court remains a final judgment until it is reversed. In this present case it was without question a final judgment from April 24th, when it was entered, until May 6th. when the appeal was taken. During that time the stay that was inherent in the certiorari was not in force; the writ itself had been dismissed by solemn judgment. The stay might, indeed, be restored, but only by order of court. The very nature of the case prevents the appeal by its own force, bridging the time between the judgment and the appeal.

The judgment is affirmed, with costs.

For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 14.

For reversal — None.