
    CHARLES PARKS, PLAINTIFF IN ERROR, v. THE STATE OF NEW JERSEY, DEFENDANT IN ERROR.
    Submitted December 5, 1898
    Decided March 6, 1899.
    A writ of error will not lie to an order of the Supreme Court denying a motion to quash an indictment removed into it by certiorari from the Sessions and remitting the indictment to the Sessions, to be proceeded in according to law before final judgment.
    On error to the Supreme Court.
    For the plaintiff in error, Edward Wilson and Frederic W. Ward.
    
    For the defendant in error, Wilbur A. Heisley, prosecutor of the pleas.
   The opinion of the court was delivered by

Mache, Chief Justice.

The assignment of errors in this case is solely directed to the refusal of the Supreme Court to quash an indictment removed into that court by a certiorari to the Monmouth County Sessions.

An examination of the so-called record returned with this writ of error discloses that the Supreme Court denied the motion to quash the indictment and ordered the record brought before it by the certiorari, to be remitted to the Sessions, to be proceeded in according to law.

By the provisions of section 6 of the Certiorari act (Gen. Stat., p. 368) the Supreme Court had authority, at its discretion, either to retain the record for trial in the proper Circuit Court or to remit the record to the court from which it was removed, to be there proceeded on.

The motion to quasli is one addressed to the discretion of the court and not ex debito justitice. State v. Hageman, 1 Gr. 314; State v. Dayton, 3 Zab. 49; Proctor v. State, 26 Vroom 472.

Whether, after final judgment, an assignment of error may be directed to a refusal to quash an indictment when no demurrer or motion in arrest of judgment, which would have presented the question of the sufficiency of the indictment on the record, has been interposed, has been mooted but not decided. Moschell v. State, 24 Vroom 498; Mead v. State, Id. 601.

It is not presented in this case and no opinion is expressed thereon, for the case before us shows that there is nothing on which this court can act.

A writ of error cannot be sued out until final judgment. Cooper v. Vanderveer, 18 Vroom 178.

When a writ of error removed a judgment of a Circuit Court into the Supreme Court, the judgment of the latter court reversing that of the Circuit Court and remitting the cause for further proceedings according to law, has been held by us to be a final judgment, reviewable by writ of error, on the grounds thát by the writ of error a new suit was instituted, the judgment wherein was final, and that the substantial matter involved was the legality of the original judgment, which was a final judgment. Lee v. Heath, 32 Vroom 250.

When the Supreme Court, by virtue of its superintending power over inferior courts, brings, by certiorari, into it the proceedings of an inferior court upon an indictment, it has the option, at its discretion, to retain the cause and proceed to a final disposition of the issues presented, or to remit the proceedings to the inferior court. Gen. Stat., p. 368.

Had the Supreme Court retained the cause now before us, it is obvious that no final judgment could have been reached until the accused had been convicted and sentenced or acquitted and discharged by that court. It is equally plain that, after the exercise of its option of remitting the proceedings to the Sessions, no final judgment in the cause could have been reached until a similar result had been reached in that court. A certiorari in such cases is not the institution of a new suit, nor does it bring in question any final judgment.

The result is that this writ was prematurely issued and must be dismissed.

For. dismissal — The Chancellor, Chief Justice, Depue, Van Syckel, Garrison, Lippincott, Gum-mere, Ludlow, Bogert, Nixon, Hendrickson, Adams, Vredenburgh. 13.  