Opinion
Argued July 3, 1939 —
Decided July 8, 1939.
Where a rule to show cause is made, based on an affidavit containing statements of fact, the evidential force of the affidavit expires with the making of the rule, and the facts alleged in the original affidavit can be brought before the court only by depositions taken on notice; or, perhaps, by stipulation.
On rule to show cause why writ of certiorari should not be allowed.
Before Justice PARKER, at chambers.
For the prosecutor, Sol Kantor in person.
For the respondents, Alfred D. Antonio.
I think that the application is devoid of merit, but it is unnecessary to consider that question at length because the matter is not presented in such form as to call for any decision by the court.
No rule of practice is better settled than the rule that where a rule to show cause is made based on an affidavit containing statements of fact, the evidential force of the affidavit expires with the making of the rule to show cause, and that the facts alleged in the original affidavit can be brought before the court only by depositions taken on notice; or, perhaps, by stipulation. Peer v. Bloxham, 82 N.J. Law 288, and cases cited, to which may be added Morris v. Quick, 45 Id. 308; Atkinson v. Prine, 46 Id. (at p. 33); Shadduck v. Marsh, 21 Id. 434, and Klein v. Adams Express Co., 61 Id. 530.
The rule to show cause is discharged, with costs.