The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-09-18

Tor every one OF ln6m exnlDitS d ickusdl
Of this Court to give such an effect to an
appeal as will have even a tendency 70
Interfere with the exercise OF its appeAate
faculty 1t has at all times manifested
| in this matter a purpose to conserve It's
| authority. its decisions in every instance
tending in that direction.
IAN example in this line is afforded by
the case of Dougherty VS.. The Somerviile
r. r. Co, 3 Hal. Oh. 6S3, which is a
leading authority relied upon in the court
below. There an injunction had been dis
| cellor until the sitting of this Court. and
the question was whether. this Court
could extend such stay until the hearing
of the appeal. The argument against
1 such, extension was that an order for the
continuance of the stay was an inJunc-
ton, which mode of proceeding could be
| taken only by a tribunal exercising orig
inal judicature. and not by force merely
of appellate authority. But this conten-
ton was oyerruled on the signlilcant
ground that the disputed power beiongea
to this Court as a necessity. the ChleI
Justice thus stating the ratio dec1dendl.
| Referring to this tribunal, he says;-lt
| may not exercise original power in &C
auiring jurisdiction over the cause. But
that Jurisdiction once regularly obtained,
this Court may exercise original Jurisaic-
! tion over the parties, especially When the
proceeding is in rem. and the obJect OIL
he order to maintain unchanged, as iar
| as practicable, the status OF CONDITION
of the subject matter of the controversy
| during the tendency of the suit. II IS
| on the same principle upon which a court
of common law, in an action OF e1ecs,
| ment or dover, will make an order upon
the party in possession, restraining the
| commission of waste; and a court OF
| equity. prior to the hearing or argument,
will. upon the same principle, grant a
temporary Injunction until the case can De
| heard. 1t is an inherent power IN all
| superior tribunals essential 70 the altalh-
| ment of the object of litigation and the
| ends of Justice. l am OF opinion, there
fore. that this court must OF necessity
have the power to make the order appnea
r - A -I l., fha c q q "a go IN a SlIlIlaf
| vein. Mr.. Justice Randolph thus expresses
his views, saying. The right 70 grant
such an order must exist m me x Yer ~ ha
right of appealinethe case; for II we nave
| no power to protest the subject matter
of the appeal then Is the rlgnt nusae9r 9n,
that this Court is possessed OF Wnateeer
power is necessary to the consummats
exercise of its functions; Ihe eIect %
the inherent force of the appeal itselI
over the decree was not considered
with respect to the cases cited from
the reports of the decision IN sns Sou 4
such determinations are altogelner map
licable as the force Of such appears Is
regulated by statute an ra,l by Of q f fbe tinted
| states. And so the authority reIerred
! to from New York, Indiana and the otneT
| States are. in g large degfee. s ,aroner
| here to remark that each, OF these adlue
| dications referred to had the effect OF
| preserving the subject OF appeal ana ye n
| apneaI its subject may be destroyed
ESTt consequently follows that in deciding
the present issue we must TAKE as suiues
aThe subject is not all complicated
Originally. in 1905, Lord Cornbury, by vlr-
| tue of his commission as Gosef IN Which
| he and his council We're TO PRESIDE, anu
| were to hear and determine al causes
| and suits in said court whlch IRON liilS
- -. hall oorna hnfnrp then. IN Sucn
manner. or as near as may be, accorolhs
| TO the usage or custom OF the flgn Soult
| of Chancery IN the KINGDOM o. E,slarn.
| This establishment continued in forge IN
fiji March 80. l770, when Governor FRANK
! lin. by virtue of his commission, m l.bz,
| constituted himself Chancellor ana Juage
If New Jersey. Governor Franklin con.
| finued in office until the Constitution OF
| New Jersey was formedZJune 2, lo.eas
| and a few months after that event on the
| Tth of October, 1876. the Legislature en-,
| acted that the several courts OF law an9
| equity of New Jersey shall pc conilrnl599
and Established, and continue 10 pc heid
with like powers under the present gov
| rnmen as they were held at aha ue-
fore the Declaration OIL 1ndepeIaehee
| fPat. Laws 49, ~
ssDi,ring this formative period and for
| a short time subsequent the DEGREES OF
the Court of Chancery were not appe1l-
able, the power OF TINS couTl tnsn os
applicable alone to actions IN the courts
| of common law. Il was not until lne year
1893. when our laws We're IN the fdhas VI
Judge Paterson for revision, tnal cosniA-
ance was conferred upo THIS tribunal 70
revise the DEGREES of the Cnaneeiicr.
/ These are the terms of the act referred
| to.-That after final sentence or decfse
| hath been pronounced, an any cause OF
| son who may think himself aggrleved by
| any interlocutory order or by any ma
| decree in any cause or suit in Cnahcefy,
may appeal from the Court OF Cnancefy
| against such order or decree to the Court
| of Errors and Appeals &c. (Pat. Laws,
434)
Afterwards, in. the year 1920, a supple
| ment to this act was passed extehdlng
this right of appeal to all orders or de-
crees not fnal,.- If made within thirty days
after the order, &c.
st thus appears that when, in the year
1874. the new Constitution of this State
was established, this Court, by force OF
its original constitution and OF the then
| existing statutes, had been clothed with
an unlimited reyisory. power over all or
| ders and DEGREES whether final or not
| final, of the Court of Equity, and in this
situation, by the VI. Article of such new
| fundamental law, it was provided that
| Court of Errors and Appeals in the last
resort in all causes as heretofore This
in effect was a declaration that the APP
| pellate power Of this court should be and
remain such as had been prior to it by the
two acts of the Legislature just cited.
1.-The effect of these two acts are, in
! my OPINION, as pam as any ll.HS cAl De.
They give the right to any person ag-
grieVed to appeal that is, to call upon
the superior courts to decide whether
his rights or property shall be afTected
by the decree in the court below, and If
so, to what extent. The entire purpose
and object of the appeal is to preserve
such rights and property from the i'll eff
fects of the decision hat is challenged.
/ Unless it produces such a result, the pro-
cedure is a mere form. The sutton in
carrying his case up asks for protection
| against an erroneous decree; such prorec-
tion is obviously refused to him If the de-
cree can be enforced before its legality
has been tested by the superior court. In
fine, the very essence of the remedy. by
appeal is TO spTevent. for the time being,
the appellant from the execution of the
existing decree; and this being so, it is
f~ndisputable that when the statute grants
the right of appeal, it grants such protec-
ton. A decree cannot be used detrimen-
tally to the appellant. pending the appeal,
for the plain reason that SUCH use will,
for every practical purpose, defeat the
appellate procedure.
Deriving from our own statute the
right of appeal with the inherent force
just Defined. it becomes unnecessary to
examine the remedy as 1t exists in other
Jurisdictions. In England. at the time of
our revolution, an appeal to Chancery
had the effect of wholly suspending all
proceedings in tina court on the decree
by inheritance the appellate jurisdiction
of the House of Lords. such would have
been the force of this remedy with us at
the present time, for the change suisse
cuently made in this respect in the Eng
lish practice by a rule of the House of