Beekwilder v. Beekwilder

• Decision Date: 14 December 1953
• Docket Number: No. A--5,A--5
• Citation: 29 N.J.Super. 351,102 A.2d 642
• Parties: BEEKWILDER v. BEEKWILDER et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 351

29 N.J.Super. 351

102 A.2d 642

BEEKWILDER v. BEEKWILDER et al.

No. A--5.

Superior Court of New Jersey Appellate Division.

Argued Nov. 23, 1953.

Decided Dec. 14, 1953.

David G. Smith, Paterson, argued the cause for defendant-respondent Ida Beekwilder (Arnold M. Smith, Paterson, attorney).

Louis C. Friedman, Paterson, argued the cause for the appellant surety.

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This appeal is from orders of the Superior Court, Chancery Division, summarily enforcing a bond given in a matrimonial cause.

Harry Beekwilder and Ida Beekwilder were divorced in Florida, and he then brought an action against her in the Superior Court here, apparently under N.J.S.A. 9:2--1, for the custody of their children. By the final judgment in the action, he was given custody of the children from September 15 to June 15 each year and ordered to deliver them to Ida within one week after June 15, whereupon she was to have custody of them until September 15. To secure his obedience to these terms, he, a resident of Florida, was required by the judgment to post a bond, with surety, in the penal sum of $2,000. In June 1953 he failed to deliver the children, and a motion for the forefeiture of the bond being made in the custody action, the court ordered the surety on the bond to pay the penal sum to the attorney for the defendant. The surety appeals.

First, it is urged here that the bond can be prosecuted only in a plenary action at law. That is a question upon which the law, except with respect to Ne exeat bonds, has been unsettled for some 75 years, and it imposes upon us the task of examining closely what may seem to be a tangle of authority.

Chancellor Runyon, in a dissenting opinion dealing with injunction bonds, expressed the view that the Court of Chancery could summarily enter judgment upon all bonds given in the course of Chancery practice. See New York & Long Branch R.R. Co. v. Dennis, 40 N.J.L. 340, 372 (E. & A.1878), disapproving Vice Chancellor Van Fleet's decision in Easton v. New York & Long Branch R.R. Co., 26 N.J.Eq. 359 (Ch.1875). The pronouncement of the Chancellor led the vice chancellor in Easton v. New York & Long Branch R.R. Co., 30 N.J.Eq. 236 (Ch.1878), to reverse his earlier stand; and though this last case was itself reversed upon other grounds in Brown v. Easton, 30 N.J.Eq. 725, 731 (E. & A.1879), the present question was left open.

Chancellor Runyon applied his views to other cases having to do with injunction bonds. See Green v. Philadelphia Freestone & Granite Co., 26 N.J.Eq. 443 (Ch.1875); Cook v. Chapman and Cook, 30 N.J.Eq. 114 (Ch.1878), cf. 41 N.J.Eq. 152, 2 A. 286 (Ch.1886); cf. Smith and Martin v. Kuhl and Hewitt, 26 N.J.Eq. 97 (Ch.1875). Dicta to the contrary will be found in our reports. Elliott v. Elliott, 36 A. 951 (N.J.Ch.1897) and Schreiber v. Schreiber, 85 N.J.Eq. 303, 96 A. 85 (Ch.1915), affirmed on other grounds 86 N.J.Eq. 437, 99 A. 117 (E. & A.1916). However these dicta depend, for their authority, upon the first opinion of Vice Chancellor Van Fleet in Easton v. New York & Long Branch R.R. Co., 26 N.J.Eq. 359 (Ch.1875), supra, which, as stated, he himself later reversed.

There is a line of distinguished authority in the federal courts relative to injunction bonds, which is altogether in agreement with the views of Chancellor Runyon. The leading case is Russell v. Farley, 105 U.S. 433, 26 L.Ed. 1060 (1882) wherein the court refused to follow the cases of Bein v. Heath, 12 How. 168, 53 U.S. 168, 179, 13 L.Ed. 939 (1851, Taney C.J.) and Merryfield v. Jones, Fed.Cas.No.9,486, 2 Curt. 306 (C.C.1855), the very cases upon which Vice Chancellor Van Fleet in his first opinion depended for authority. The practice in other jurisdictions, as laid out in statutes, rules or otherwise, is similar. 43 C.J.S., Injunctions, § 283a, p. 1060 et seq.; Ann.Cas.1918C 97; 2 Daniell, Chancery Pleading and Practice

Page 1666

(6th Am. ed.1894).

It is important to observe that under these cases having to do with injunction bonds--that is, under Easton v. New York & Long Branch R.R. Co., 30 N.J.Eq. 236 (Ch.1878), supra (V. C. Van Fleet's second case), and also under the federal and certain other cases--the injunction bond may be prosecuted summarily in the equitable proceeding in which it is given, even though it does not contain a provision authorizing such practice. See Chancery Rule 46 as promulgated in 1853 (cf. Rule 218, 1938 edition, Rules of former Court of Chancery--there is no such rule today), which required such a provision to be inserted in an injunction bond. See also Easton v. New York & Long Branch R.R. Co., 26 N.J.Eq. 359 (Ch.1875), supra; Dickinson's Chancery Precedents, 301--308 (rev.ed.1894); 4 New Jersey Practice (Marsh and Vogel) Forms, § 1827; cf. Smith v. Day, 21 Ch.Div. 421 (C.A.1882); Griffith v. Blake, 27 Ch.Div. 474 (C.A.1884); 18 Halsbury's Laws of England, (2nd ed.1935) 116; cf. also R.R. 1:4--9.

With respect to a Ne exeat bond, Chancellor Runyon's views are now fully accepted in this State. The law is now that the sureties on such a bond, by their signatures thereon, make themselves parties to the cause for all purposes connected with the bond. Schreiber v. Schreiber, 85 N.J.Eq. 303, 96 A. 85 (Ch.1915), affirmed (but without passing on this point) 86 N.J.Eq. 437, 99 A. 117 (E. & A.1916), supra. Upon a motion in the cause, the court may declare the bond forfeited and direct the sureties to pay the penalty thereof of into court. Wauters v. Van Vorst, 28 N.J.Eq. 103 (Ch.1877, Runyon C.); Elliott v. Elliott, 36 A. 951 (N.J.Ch.1897), supra; Schreiber v. Schreiber, supra; Penny v. Penny, 88 N.J.Eq. 160, 102 A. 257 (Ch.1917); Vahjen v. Vahjen, 105 N.J.Eq. 271, 147 A. 543 (Ch. 1929), affirmed 107 N.J.Eq. 186, 152 A. 921 (E. & A. 1930); Connolly v. Connolly, 112 N.J.Eq. 434, 164 A. 570 (Ch.1933), affirmed Connolly v. Guardian Casualty Ins. Co., 115 N.J.Eq. 74, 169 A. 690 (E. & A. 1933); but cf. Drum v. Drum, 69 N.J.L. 557, 558, 55 A. 86 (Sup.Ct.1903).

The generality of Chancellor Runyon's proposition as to bonds posted in the course of Chancery practice, might seem to be opposed by Elliott v. Eilliott, 36 A. 951 (N.J.Ch.1897), supra. There the court deals with a bond in a separate maintenance action, given to secure the payment of support money. However, that decision (as already noted) depends for its authority upon Vice Chancellor Van Fleet's first opinion, Easton v. New York & Long Branch R.R. Co., 26 N.J.Eq. 359 (Ch.1875), supra, which the vice chancellor himself later rejected. We do not deal here with the bond of a fiduciary or a receiver.

Beyond the authorities above examined, we must heed the injunction of our Constitution, Art. VI, § III, par. 4, relative to the Superior Court, requiring 'legal and equitable relief' to 'be granted in any cause so that all matters in controversy between the parties may be completely determined.' In keeping with the spirit of this overriding provision, if not, indeed, in obedience to its letter, the liability of the surety on the bond before us should be determined in the cause in which the bond was posted. In that way the dispute is disposed of with efficiency, that is, without the delays and expense imposed by a relitigation of matters well known to the court requiring the bond. So, with these forcible considerations in mind, we are persuaded that Chancellor Runyon's rule, obtaining as to a Ne exeat bond, and supported by strong authorities in the United States Supreme Court in connection with an injunction bond, should be applied, as well, to the bond now before the court.

But it is said that the surety is thereby deprived of his right to trial by jury. This raises the second question. The summary practice as to Ne exeat bonds is too well settled in this State to suppose at this date that such a matter as this has been overlooked. The practice on such bonds may be likened to a summary proceeding under our statute for the amercement of sureties on a capias bond given at law. Cf. Gault v. Gault, 112 N.J.Eq. 41, 163 A. 139 (Ch.1932); Schreiber v. Schreiber, 85 N.J.Eq. 303, 307, 96 A. 85 (Ch.1915), affirmed on other grounds, 86 N.J.Eq. 437, 99 A. 117 (E. & A. 1916), supra. And in connection with such an amercement, it has been held that the surety has no right to trial by jury. Santos v. Anderson, 142 A. 818, 6 N.J.Misc. 799 (Sup.Ct.1928), affirmed 106 N.J.L. 596, 146 A. 916 (E. & A. 1929).

Nor, under the federal practice, is a jury trial required where a proceeding is brought against sureties on an appeal bond to enforce, summarily in the cause, their liability on the bond. Dealing with that practice, Justice Brandeis has held that 'the constitutional right of trial by jury presents no obstacle.' In this matter, Justice Brandeis depended for authority upon the line of federal cases permitting like summary proceedings against sureties on injunction bonds. Pease v. Rathbun-Jones Engineering Co., 243 U.S. 273, 37 S.Ct. 283, 286, 61 L.Ed. 715 (1916).

Indeed, whenever a bond is required in an equitable cause, the summary award of money damages on the bond is incidental to the cause. Equity having taken jurisdiction over the cause, will dispose of its incidents, including purely legal matters, and so put an end to further litigation. In such a case, upon familiar principles, there is no right to trial by jury. Carpenter v. Fisher, 68 N.H. 486, 38 A. 211 (Sup.Ct.1896); Pease v. Rathbun-Jones Engineering Co., supra; Steiner v. Stein, 2 N.J. 367, 374, 380, 66 A.2d 719 (1949).

The third major question goes to the propriety of those parts of the orders appealed from, that require payment of the penal sum to be made to the attorney for the defendant. The obligee of the bond before us is the State of New Jersey, though by the terms thereof the penalty is made payable to the State 'or its assigns.' Under the usual practice, the obligee in a Ne exeat...