Assets Dev. Co. v. Wall

• Decision Date: 20 November 1922
• Parties: ASSETS DEVELOPMENT CO. v. WALL.
• Court: New Jersey Supreme Court

119 A. 10

ASSETS DEVELOPMENT CO.

v. WALL.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1922.

Appeal from Circuit Court, Hudson County.

Action by the Assets Development Company against Albert C. Wall, substituted administrator. Judgment for defendant, and plaintiff appeals. Affirmed.

Robert H. McCarter and G. W. O. McCarter, both of Newark, for appellant.

Albert C. Wall, of Jersey City, pro se.

GUMMERE, C. J. This action was brought by the Assets Development Company, as plaintiff, against Wall, as substituted administrator of the estate of F. Augustus Heinze, deceased, to recover certain moneys alleged to be due upon a promissory note made by the defendant's intestate to one Geer, and assigned by him to the plaintiff. The plaintiff averred that a demand for payment of his claim had been duly filed with the defendant as substituted administrator, before suit was brought, and the defendant in his answer admitted this fact, but denied the existence of the indebtedness. The case went to trial on those pleadings, and resulted in a verdict in favor of the plaintiff. The judgment was entered in May, 1920.

In the following January the defendant applied for a rule opening the judgment and permitting him to set up as a defense to the plaintiff's claim a rule to bar creditors and a decree entered on that rule, both of which had been taken out by his predecessor in the administratorship, and, of course, prior to the service of the demand for payment made upon him by the plaintiff. After argument and consideration the application was granted; and the substituted administrator then filed an answer, setting up the rule and the decree as a bar to plaintiff's action. To this the plaintiff replied that no proof had ever been made to the surrogate of the posting or publication of the notice to creditors required by the statute as a prerequisite to the granting of a decree barring creditors (although the decree itself contains a recital that it had been made to appear, by satisfactory proof, that such notice had been published and posted), and that therefore the decree was absolutely null and void for lack of jurisdiction on the part of the surrogate to make it. On motion of the defendant, this replication was struck out by the court, and a rule entered directing judgment in favor of the substituted administrator.

The first contention is that the court erred in directing that the judgment originally entered should be opened, notwithstanding that it appeared on the hearing of the application that the defendant had no knowledge of the entry of the rule or decree at the time of the original trial, and did not discover the fact of such entry until a short time before he made his application to open the judgment.

That the courts of this state, whose practice and procedure are in accordance with the rules and regulations of the common law, have power to open judgments upon good cause shown is settled beyond controversy. It was exercised by the Supreme Court as early as the year 1795, in the case of Miller v. Alexander, 1 N. J. Law, 400, and has continued to be exercised from that time to the present, whenever it was properly invoked. And the court may exercise this power at any time while the cause remains under its control, provided the moving party embraces the first opportunity he has of presenting his case. Kelly v. Bell, 17 N. J. Law, 270. It is equally well settled that by the common law an application to open a judgment regularly entered is addressed wholly to the discretion of the court in which it was rendered, and that consequently a writ of error (an appeal under our present pactice) will not lie to review the determination of that court. Smith v. Livesey, 67 N. J. Law, 269, 51 Atl. 453.

We conclude that the first ground upon which this appeal is rested is without legal merit.

The next contention made by the appellant is that the court erred in striking out the reply to defendant's answer, settin; up the rule and decree barring creditors. It is conceded that as a general rule the orders and decrees of the surrogate are not open to attack in a collateral proceeding; but it is argued that this legal principle does not apply where the order or decree is attacked upon the ground of lack of jurisdiction in the surrogate to make it; and Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472, 477, and Ryno's Ex'r v. Ryno's Adm'r, 27 N. J. Eq. 522, 524, are cited as supporting this contention.

In the Quidort Case the situation was this: The complainant, as administrator of Quidort, recovered a judgment against the defendant, Pergeaux, and issued execution thereon, which was returned unsatisfied. He then filed his bill in chancery, charging that certain premises standing in the name of Pergeaux's wife had been purchased by the husband and the title placed in the wife's name for the purpose of defrauding his (the husband's) creditors. In this situation, the defendants attempted to show that Quidort left a will, and that therefore the grant of administration to the complainant by the surrogate was unlawful and void. It was held that the court could not consider the...