Am. Auto Finance Co., Inc. v. Miller

• Decision Date: 26 July 1939
• Citation: 123 N.J.L. 1,7 A.2d 828
• Parties: AMERICAN AUTO FINANCE CO., Inc. v. MILLER et al.
• Court: New Jersey Supreme Court

7 A.2d 828

123 N.J.L. 1

AMERICAN AUTO FINANCE CO., Inc.

v. MILLER et al.

Supreme Court of New Jersey Camden County.

July 26, 1939.

Action by American Auto Finance Company, Incorporated, against Charles H. Miller, Harry H. Miller, and Sophie Miller. On application by Harry H. Miller and Sophie Miller to open and vacate a judgment entered by confession upon the bond and warrant of attorney in favor of the plaintiff against all the defendants.

Judgment vacated.

Argued before DONGES, J., by consent.

Nathan Blank, of Camden, for plaintiff.

Sydney T. Smith, of Camden, for defendants.

DONGES, Justice.

This is an application to open and vacate a judgment entered by confession, upon bond and warrant of attorney, in favor of the plaintiff against three defendants. The applicants are Harry H. Miller and Sophie Miller, his wife; the third defendant, Charles H. Miller, does not join.

The transaction arose out of the purchase by Charles H. Miller of a used automobile, the plaintiff being engaged in the financing of such purchases. The bond and warrant were executed on September 6th, 1933, in the penal sum of $975, conditioned upon the payment to plaintiff of the sum of $487.50 in one day from the date thereof. On the same day there was executed a lease agreement for the automobile, retaining title in the plaintiff herein as security for the payment of the debt. This agreement provided for a payment of ten dollars upon execution, twelve dollars on September 13th, 1933, nine dollars per week for forty-nine weeks commencing September 20th, 1933, and one hundred thirty-two dollars and fifty cents on the fifty-first week. The ten dollars was admittedly paid and the next payment due under the lease was on September 13th, 1933. On September 9th, 1933, Nathan Blank took affidavit that the entire debt of $487.50 was "justly and honestly due and owing" and judgment was confessed on that day and actually entered in the clerk's office on September 15th, 1933.

The attack here is upon the affidavit, the contention being that when the affidavit was made the debt was not in fact due and owing. I think there can be no doubt that the debt was owing, but the question is whether or not it was due.

Plaintiff relies upon Gaskill & Sons v. Buckman, 95 N.J.L. 14, 116 A. 692, 693; affirming 53 N.J.L. 665, 25 A. 19, a case where notes had been given for the purchase price of lumber and a bond and warrant were also executed. When judgment was entered some of the notes were not due, and it was held: "Debts now...