Berger v. Darminio

• Court: New Jersey Supreme Court
• Writing for the Court: Katzenbach, J.
• Citation: Berger v. Darminio, 143 A. 50 (N.J. 1928)
• Decision Date: 11 September 1928
• Parties: CHARLES BERGER, TRADING AS BERGER FERTILIZER AND CHEMICAL COMPANY, PLAINTIFF, v. THOMAS DARMINIO, DEFENDANT

143 A. 50

BERGER

v. DARMINIO.

Supreme Court of New Jersey.

Sept. 11, 1928.

Action by Charles Berger, trading as the Berger Fertilizer & Chemical Company, against Thomas Darminio. On motion to strike out answer, and for entry of summary judgment. Motion denied.

Edward R. Deibert, of Camden, for the motion.

Philip Wendkos, of Camden, opposed.

KATZENBACH, J. The plaintiff trades as the Berger Fertilizer & Chemical Company. In the years 1025 and 1926 he sold to Thomas Darminio fertilizer, which was used upon his farm. The account was not paid, and was put in the hands of an attorney for collection, who instituted in behalf of the plaintiff an action against the defendant upon the book account. The defendant interviewed the plaintiff. The plaintiff agreed to accept a promissory note for the amount of the debt, payable on August 1, 1927. This note was made out in the office of the attorney and signed by the defendant. The affidavit of the clerk in the office of the attorney for the plaintiff states that the defendant advised the attorney, at the time of the delivery of the note, that the fertilizer was unsatisfactory, and that he had lost money in the year 1926, but he did not want any suit against him, and therefore gave the note. The proceedings in this suit were discontinued. The note was not paid at maturity. Suit was instituted upon the note. Judgment by default was taken, but the judgment was opened by consent of the attorney for the plaintiff, and an answer and counterclaim were filed by the defendant. These pleadings set up that the fertilizer was not of the purported analysis, and that the defendant had been damaged thereby. The present motion is to strike out this answer and counterclaim. The grounds for the motion are that they are sham and frivolous. They are not frivolous. The question turns upon whether the defenses are sham defenses.

The suit is between the maker and the payee of the note, and the defendant is entitled, therefore, to make the same defenses as if the suit were upon the book account. While not particularly impressed with the defenses set up, the defendant has made an affidavit that the fertilizer was not up to the warranty given by the agent of the plaintiff who sold it to the defendant, and that at the time of the delivery of the note the defendant made it distinctly understood that the fertilizer was not as represented. There is not sufficient evidence that the note was given by way of compromise and the defenses now set up waived. I am therefore of the opinion that the defendant is entitled to have his testimony passed upon by a jury. I shall therefore permit the answer and counterclaim to stand.

This view results in a denial of the motion to strike out the defenses, and for the entering of judgment final. Any questions arising out of joint possession of premises by defendant in ejectment action and his wife, not a party to action, were not before appellate court, where it was not found that she was in possession of premises jointly or otherwise, and no proper steps were taken to import such fact into record.

Appeal from Superior Court, Fairfield County; Edwin O. Dickenson, Judge.

Action of ejectment by Francis J. Gaul against Charles H. Baker and others. Defendant Baker's demurrer to the plaintiff's answer to a plea in abatement and to the jurisdiction was overruled and the plea overruled, a judgment by default was entered against the defendant Baker, and issues raised by the complaint and the counterclaim of the defendant Gerace were tried to the court Judgment for the plaintiff, and defendants appeal. No error.

Argued before MALTBIE, HAINES, HINMAN, AVERY, and BALDWIN, JJ.

Joseph A. Gray, of Norwalk, for appellants.

Raymond E. Hackett, of Stamford, for appellee.

MALTBIE, J. This is an action of ejectment. The defendant Baker pleaded in abatement, among other grounds stated, that he was a nonresident, and that no personal service had been made on him nor had any property belonging to him in this state been attached, and these facts were admitted in the answer to the plea. When the action was instituted, notice of its pendency was ordered to be given to Baker by registered mail, in accordance with the provisions of section 5509 of the General Statutes, and this order was complied with. Subsequently another like order was made and complied with, and the case was ordered continued on the docket for three months, but, upon proof that Baker had received actual notice of the pendency of the action, the continuance was thereafter terminated; this procedure strictly according in all. respects with the applicable provisions of sections 5625 and 5627 of the General Statutes.

Our action of ejectment differs greatly from that of the common law, and is much broader in its scope. Walsh v. Feustel, 93 Conn. 366, 370, 105 A. 696. It may and usually does involve the question of title, so much so that the pendency of an action of ejectment may be ground for abating a later action brought to settle the title to the lands involved. Cahill v. Cahill, 76 Conn. 542, 545, 57 A. 284. As a proceeding brought to determine the title and right to the possession of land it is a local action, and the issues are not such that they could be tried elsewhere than in this state. Kentucky Coal Lands Co. v. Mineral Development Co. (C. C A.) 219 F. 45, 46. When brought, as it is here, to assert a right to possession based upon a claimed title, it is substantially a proceeding in rem, and, as our statutes contain applicable provisions for notice to a nonresident claimed to be in possession of the land, and as these provisions were followed in this case, the court had jurisdiction to determine the plaintiff's right to the land as against the defendant Baker. Harris v. Weed, 89 Conn. 214, 222, 93 A. 232; Roller v. Holly, 176 U. S. 398, 20 S. Ct. 410, 44 L Ed. 520; Arndt v. Griggs, 134 U. S. 316, 10 S. Ct 557, 33 L Ed. 918; Clem v. Givens, 106 Va. 145, 55 S. E. 567; Williams v. Williams, 221 Ill. 541, 545, 77 N. E. 928. The other grounds of abatement alleged, in so far as they could be considered proper matter to plead in abatement at all, required evidence to support them, and the defendant offered none. To be sure, at the time finally set for hearing, he asked a continuance, but the court refused it, and we cannot find that it abused its discretion in that regard. There was no error in overruling the plea in abatement.

Having overruled the plea, the trial court properly proceeded with the case. Judgment of default for failure to appeal was entered against the defendant Baker, and he took no further part in the action until this appeal was filed. The complaint alleged that Baker had wrongfully dispossessed the plaintiff and was...