Brandt v. Tartar

• Decision Date: 11 March 1929
• Docket Number: No. 442.,442.
• Citation: 145 A. 225
• Parties: BRANDT v. TARTAR.
• Court: New Jersey Supreme Court

145 A. 225

BRANDT

v. TARTAR.

No. 442.

Supreme Court of New Jersey.

March 11, 1929.

Action by Abraham Brandt against Louis Tartar. Judgment was entered for plaintiff on a bond and warrant of attorney. On defendant's rule to show cause why plaintiff's judgment should not be set aside. Rule discharged.

Argued October term, 1928, before TRENCHARD, KALISCH, and LLOYD, JJ.

Charles M. Atkinson, of Camden, for the rule.

Raymond L. Siris and D. Trueman Stackhouse, both of Camden, opposed.

PER CURIAM. On this rule to show cause the defendant challenges the sufficiency of the affidavit to Support the judgment entered upon a bond and warrant of attorney. No depositions were taken in support of his motion. Consequently the court has for its consideration only such statements as appear on the face of the records of the proceedings.

The first point is that the affidavit is insufficient, because taken before a notary public. While it is true that section 12 of the Act concerning Bonds and Warrants (1 C. S. 1910, p. 219), provides that the affidavit required by the act may be made before certain designated officers, yet this provision is plainly amplified by the Act relative to Oaths and Affidavits (P. L. 1880, p. 287), as amended by P. L. 1916, p. 90, which provides that:

"All oaths, affirmations and affidavits required to be made or taken by any statute of this state, or necessary or proper to be made, taken or used in any court of this state, or for any lawful purpose whatever, may be made and taken by and before * * * any notary public."

It is thus plain that an affidavit upon which a judgment by confession is based, being necessary or proper to be made, taken, or used in the court in which said judgment is to be entered, may be taken before a notary public.

We do not think that the judgment should be set aside as excessive, as urged in the second point. It is quite apparent that the difference of $88 between the amount of the judgment as entered and the amount of the bond was arrived at by calculating the interest from the date of the sale, June 8, 1928, to the entry of the judgment, August 15, 1928. We think that, since the amount of the bond was liquidated at $8,000 on June 8, 1928, the date of the sale, the plaintiff would be entitled to interest from this date.

An attack is also made upon the judgment on the ground that "there is a variance between the purpose for which the bond was given and the obligation as set out by the affidavit of the...