Century Transit Co. v. Pub. Serv. Coordinated Transp., Inc.

• Decision Date: 25 January 1935
• Citation: 176 A. 719
• Parties: CENTURY TRANSIT CO. v. PUBLIC SERVICE COORDINATED TRANSPORT, Inc., et al.
• Court: New Jersey Court of Chancery

176 A. 719

CENTURY TRANSIT CO.

v. PUBLIC SERVICE COORDINATED TRANSPORT, Inc., et al.

Court of Chancery of New Jersey.

Jan. 25, 1935.

Syllabus by the Court.

1. On motion to strike bill of complaint for want of equity, where bill seeks a decree invalidating sheriff's sale and ordering bill of sale surrendered for cancellation because sale was noticed by sheriff for "11 o'clock in the ——noon, D. S. T.," but was actually conducted by sheriff at 10 o'clock in the forenoon, Eastern Standard time, held, that a sale so noticed and so conducted is invalid. Motion to strike is accordingly denied.

2. A statute (Comp. St. Supp. 1930, § 136—4000A (2), requiring the approval of the Board of Public Utility Commissioners as a prerequisite to the right to operate under a bus franchise sold by a sheriff pursuant to execution and levy, does not and cannot deprive the Court of Chancery of jurisdiction to pass upon the validity of the sale.

Suit by the Century Transit Company against the Public Service Coordinated Transport, Incorporated, and others. On motion to show cause for ad interim restraint, and on motion to strike bill.

Order in accordance with opinion.

D. Trueman Stackhouse, of Camden, for complainant.

Patrick H. Harding, of Camden, for defendant Public Service Coordinated Transport, Inc.

Waddington & Mathews, of Camden, for defendant Gloucester Heights Bus Co.

Samuel P. Orlando and Louis B. Le Due, both of Camden, for defendant Stanislaw Kasprzak, administrator, etc.

DAVIS, Vice Chancellor.

In this cause a motion to strike the bill of complaint was made on behalf of the defendants Public Service Coordinated Transport, Inc., and Stanislaw Kasprzak, administrator, etc. A petition was filed and an order to show cause made thereon seeking to restrain the defendant Public Service from taking possession of or operating complainant's bus line pending final hearing of the cause. The bill as amended sets forth that the complainant was engaged in operating a bus line between Gloucester Heights and Camden, N. J., having complied with the legal requirements for the operation of such line, and 'that one of complainant's buses was involved in an accident which caused the death of one John Kasprzak, resulting in a suit for damages by his administrator in the Camden county circuit court and the recovery of a judgment against the complainant herein for $9,100.52, damages and costs; that execution was issued on this judgment out of said court to the sheriff of Camden county on May 22, 1934; and that the sheriff levied upon the following property: "All the right, title and interest, credits, moneys, and effects, goods and chattels, lands and tenements, more particularly all the right, title and credits which the Century Transit Company may have on the Franchise to operate buses between Camden and Gloucester Heights, now in the hands of the Century Transit Company, and the municipal consents of the City of Camden, and the Township of Haddon." And that after such levy the sheriff attempted to advertise, in accordance with the statute, the property levied upon, for sale on June 8, 1934. The public notices of such sale set forth that by virtue of the writ of fieri facias issued out of the circuit court, the goods as levied upon and as hereinbefore set forth would be sold at public vendue on Friday, June 8, 1934, "at 11.00 o'clock D. S. T. in the—— noon of said day," and were posted in four of the public places of the city of Camden, one near Reading Ferry Garage, Front and Kaighn avenue, and one each in the sheriff's, register of deeds', and county clerk's offices. The property was sold for $9,500 to Nathan Blank, who assigned his bid to the defendant Public Service, and on June 13, 1934, the sheriff executed and delivered a bill of sale to Public Service, which bill of sale purported to convey the property levied upon, and after the making of the bill of sale, the sheriff returned his process of execution to the said circuit court. The Public Service filed an application with the Board of Public Utility Commissioners of the State of New Jersey, requesting approval of the sale which, pending the proceedings in this cause, has been approved by the commissioners.

On August 31, 1933, prior to the bill of sale made by the sheriff to Public Service, the complainant sold to Gloucester Heights Bus Company, Inc., its franchises and municipal consents, and on February 28, 1934, executed to Gloucester Heights Bus Company, Inc., a bill of sale for all the right, title, and interest of complainant in and to said franchises and municipal consents. On January 31, 1934, Gloucester Heights Bus Company, Inc., made application to the Board of Public Utility Commissioners for consent to the transfer of these municipal consents, which application was heard by the board and denied.

The bill further alleges that the levy under the execution against complainant was made by one Winfield S. Clark, an alleged deputy of the sheriff, and who also conducted the alleged sale under the execution, and avers that Clark was never deputized by the sheriff to make the levy. The complainant avers that the sale is null and void because Clark was never legally deputized to make such levy and sale and because such sale was advertised for 11 o'clock D. S. T. in the ——noon, a meaningless phrase which did not apprize potential purchasers of the hour at which the said sale was to be held, and that such sale was held at 10 o'clock, Eastern Standard time, an hour prior to the time at which it was advertised to be held, and that the bill of sale given by the sheriff to Public Service is also null and void because the sheriff had no legal right to accept an assignment of the bid and had no legal right to make any bill of sale other than to the purchaser at said sale and because of the return of the execution by the sheriff to the circuit court; that complainant has no remedy at law and seeks to have the sheriff's sale declared null and void for the reasons set forth and to have the bill of sale...