Jackson v. Walker — 6 Hill & Den. 261

Majority

p. 261

Jackson vs. Walker.

Headnote

A writ of error lies upon a judgment of this court reversing that of an inferior tribunal and awarding a venire de novo.

Walker recovered a judgment- against Jackson in the superior court of the city of New-York, and on a writ of error this court reversed the judgment and awarded a venire de novo in the court below.

p. 262

S. Sherwood, in' behalf of Walker,

moved that the plaintiff in error «perfect a judgment of reversal, or that Walker be allowed to do it, to the end that he might bring a writ of error to the court for the correction of errors.

N. B. Blunt, contra,

insisted that the cause should be retried in the superior court. He read an affidavit that Jackson expected on a second trial to present other questions than the one on which the judgment was reversed; and insisted that, as a venire de novo was awarded, there was no final judgment on which a writ of error would lie. The very point was decided in Houston v. Moore, ( 3 Wheat. 433 .)

The case of Houston v. Moore decides, that when a venire de novo is awarded on the reversal of a judgment, there is no such final judgment as will warrant a writ of error under the 25th section of the United States judiciary act of 1789. But I learn from the chancellor that this question was recently before the court of errors, where we had reversed the judgment of an inferior court and awarded a venire de novo ; and it was held that a writ of error would lie upon our judgment before the cause had been re-tried.^[1] If a writ of error will lie, it is matter of right; and it is of no consequence that Jackson thinks he can make a better case than the one on which he rested before, and on which he obtained the reversal.

Motion granted.

(a) (a) The case referred to is Van Santvoord v. St. John, (ante p. 157.)

Cases cited

Houston v. Moore 3 Wheat. 433 SCOTUS 1818-02-28 p. 262