Opinion
Submitted May 28, 1943 —
Decided September 16, 1943.
1. By statute and the settled practice, no writ of error (now appeal) lies to this court until final judgment.
2. An order disposing of a rule to show cause why a verdict should not be set aside and a new trial had, is not a final judgment, and, therefore, not appealable.
3. Abuse of discretion, in disposing of such a rule, to be urged as a ground for error, must await final judgment.
4. The entire subject is fully treated and definitely disposed of by Trovato v. Capozzi, 119 N.J.L. 147 ; Kople v. Zalon, 122 Id. 422, and Nelson v. Eastern Air Lines, Inc., 128 Id. 46 .
On appeal from the Supreme Court.
For the plaintiff-appellant, Theodore F. French.
For the defendant-respondent, William H. Speer ( Henry J. Sorenson, of counsel; Henry H. Fryling, attorney of record).
This is an action in tort, seeking damages said to have been caused by the respondent in the negligent operation of a bus.
The cause was tried in the Supreme Court, Camden Circuit, and resulted in a verdict for the appellant.
A rule to show cause why this verdict should not be set aside and a new trial had was obtained by the defendant-respondent and, after argument, was made absolute and a new trial ordered. Thereupon this appeal was taken "from the order setting aside the verdict of the jury" and the sole ground assigned is that there was an abuse of discretion.
By a statute entitled "An act to regulate writs of error," February, 1788 ( Paterson's Laws of New Jersey, 345, 346), carried down into R.S. 2:27-349, no writ of error (now appeal) lies to this court "until final judgment."
This is the definite and settled practice, Kople v. Zalon, 122 N.J.L. 422; Nelson v. Eastern Air Lines, Inc., 128 Id. 46.
An order disposing of a rule to show cause why a verdict should not be set aside and a new trial had, is not a final judgment and therefore not appealable, Kople v. Zalon, supra; Trovato v. Capozzi, 119 N.J.L. 147 .
Abuse of discretion in disposing of such a rule, to be urged as a ground for error, must, therefore, await final judgment.
The entire subject is fully treated and definitely disposed of by Trovato v. Capozzi; Kople v. Zalon, and Nelson v. Eastern Air Lines, Inc., supra, and the cases cited therein.
The appeal is dismissed, with costs.
For dismissal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 16.