Bretthalter v. Jacobson

• Decision Date: 02 March 1910
• Citation: 75 A. 560,79 N.J.L. 223
• Parties: BRETTHALTER v. JACOBSON et al.
• Court: New Jersey Supreme Court

75 A. 560

79 N.J.L. 223

BRETTHALTER

v. JACOBSON et al.

Supreme Court of New Jersey.

March 2, 1910.

Error to Circuit Court, Union County.

Action by Carl Bretthauer as administrator of the estate of Charles Bretthauer, deceased, against Barnett Jacobson and others. From an order overruling a demurrer to the declaration, defendants bring error. Reversed.

Argued November term, 1909, before GUMMERE, C. J., and GARRISON and VOORHEES, JJ.

John J. Stamler, for plaintiffs in error.

Alfred A. Stein, for defendant in error.

GUMMERE, C. J. The record returned with the writ in this case comprises a declaration, a demurrer thereto, and the following order, viz.: 'The argument of the demurrer to the plaintiff's declaration coming on to be heard in the presence of the counsel of the respective parties, and the court having heard and considered the same, it is on this 4th day of May, 1909, on motion of Alfred A. Stein, attorney for the plaintiff, ordered that the demurrer be overruled with costs, and that the defendants plead to the plaintiffs declaration within five days from the date hereof." The writ of error is tested on the 7th day of May, 1909, two days before the expiration of the time within which, by the terms of the above-recited order, the defendants were entitled to plead. The case, therefore, involves the preliminary question whether the order returned with the writ is reviewable on error; in other words, whether it is a final judgment. It is apparent that this order, in the form in which it is passed, is not, in itself, a final judgment, dispositive of the matters in litigation between the parties to the suit. It is, rather, a judgment nisi, permitting the plaintiff to enter judgment final at the expiration of the five days limited therein, unless in the meantime the defendant shall plead to the action. But the act of the defendant in suing out his writ of error was, in its legal effect, a refusal to accept the privilege extended to him by the court; for a necessary preliminary to the filing of a plea, after the overruling of a demurrer, is the withdrawal of the demurrer. By adopting this course of procedure he has abandoned any defense which he may have to the action upon the merits; and, unless he can succeed in reversing the order entered against him, there remains to be done nothing except to assess the plaintiff's damages and tax his costs. This being so, the suing out of the writ of error rendered the order a judgment final in effect, though not in form, and it is consequently reviewable on error. Tomlinson v. Armour & Co., 75 N.J.Law, 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923.

Turning to the merits, the following situation is disclosed: Charles Bretthauer, the plaintiff's Intestate, was a resident of the city of Elizabeth, and came to his death in that city on the 16th day of March, 1907, by being run over by a wagon drawn by a pair of horses belonging to the defendants, and carelessly driven by one of their employés. The present action was begun on the 17th day of February, 1909, and by it the plaintiff seeks to recover from the defendants the pecuniary loss sustained by the decedent's next of kin by reason of his death. The right of an administrator to...