
    THE STATE, DENNIS DOWD, PROSECUTOR, v. DAVID M. JONES.
    Where a certiorari to review a judgment of the Court of Common Pleas, on an appeal from the District Court, has been dismissed for want of prosecution, a second writ should not be allowed to the prosecutor; his remedy is to move to set aside the order of dismissal, and this will ■ be done only where it is made to appear that the order was irregularly or improvidently made.
    On motion to quash certiorari.
    
    Argued at June Term, 1896, before Justices Depue, Van Syckel and Gummere.
    
      For the motion, William M. Dougherty.
    
    
      Contra, George J. McEwan.
    
   The opinion of the court was delivered by

Gummere, J.

David M. Jones, the defendant here, recovered a judgment in the District Court in an action brought by him against Dowd, the prosecutor, and that judgment was afterwards affirmed by the Court of Common Pleas of Hudson county, on appeal. The prosecutor thereupon obtained a certiorari, removing into this court for review the judgment of the Court of Common Pleas. The writ was duly returned into this court, and subsequently, at the February Term,. 1896, was dismissed for want of prosecution. After his writ was dismissed, and at the same term, the prosecutor applied to set aside the order of dismissal as having been improperly made. This application was denied and the record which has been brought up by the writ was remitted to the Court of Common Pleas. The prosecutor then made application to one-of the justices of this court, at chambers, for a second writ, which was allowed, and we are now asked by the defendant to quash this second writ on the ground that it was improvidently allowed.

In cases where the province of the writ of certiorari is to bring into this court for review the judgment of the Court of Common Pleas, on an appeal from the District Court, it is in its effect a writ of error, and is used in the place of that writ only because the statute (Gen. Stat., p. 1247, § 174) so directs. Hinchman v. Cook, Spenc. 271; Mowery v. Camden, 20 Vroom 106, 109; Potter v. Fritz, 25 Id. 436. The same practice, therefore, should prevail in the allowance of a second certiorari, where it is used as a statutory substitute for a writ of error, as prevails in the suing out of a second writ of error.

The question of the right of a litigant to sue out a second writ of error after he had suffered his original writ to be dismissed for want of prosecution, was considered and determined by the Court of Errors in Welsh v. Brown, 13 Vroom 323, and it was there held that the plaintiff in error, under such circumstances, would not be permitted to sue out a second writ; but that, if his first writ was irregularly or improvidently dismissed his remedy was by motion to set aside the order of dismissal. In view of this decision of our highest court it is quite clear, that the prosecutor in this case was not entitled to a second certiorari, after his first writ was dismissed for want of prosecution. His remedy, if he considered himself injured by the order dismissing his original writ, was to apply to vacate that order, and this remedy he availed himself of.

The motion to quash is allowed, with costs.  