Cord v. Newlin

• Decision Date: 14 November 1904
• Citation: 71 N.J.L. 438,59 A. 22
• Parties: CORD et al. v. NEWLIN.
• Court: New Jersey Supreme Court

59 A. 22

71 N.J.L. 438

CORD et al.

v. NEWLIN.

Supreme Court of New Jersey.

Nov. 14, 1904.

(Syllabus by the Court.)

Case Certified from Circuit Court, Camden County, for Advisory Opinion.

Action by Samuel S. Cord and others against James W. M. Newlin. Case certified. Questions answered.

Argued February term, 1904, before the CHIEF JUSTICE and GARRISON, SWAYZE, and DIXON, JJ.

John F. Harned, for plaintiffs.

W. B. Wolcott, for defendant.

DIXON, J. The Camden circuit has certified several questions for the advisory opinion of this court.

The first is: "Can the defendant, after appearing generally [in an action begun by a writ of attachment] and filing a plea, be heard on a motion to discharge the writ or to quash the levy thereunder?" This question seems to be sufficiently answered by the opinions of this court in Heckscher v. Trotter, 48 N. J. Law, 419, 5 Atl. 581, Moore v. Richardson, 65 N. J. Law, 531, 47 Atl. 424, and Sullivan v. Moffat, 68 N. J. Law, 211, 52 Atl. 291, to the effect that in such circumstances the levy made be quashed, but the writ itself as a process to bring the defendant into court cannot be annulled. Indeed, after the defendant has entered a general appearance, the process by which he was summoned has fulfilled its function in that respect and become unimportant.

The second question is: "Are costs taxed against the defendant in the Court of Errors and Appeals on an appeal from a decree in chancery such a debt as will sustain a writ of attachment?" The decision of this court in Van Buskirk v. Mulock, 18 N. J. Law, 184, gives a negative answer to this question, but the opposite view with respect to decrees for the mere payment of money was maintained in the later case of Mutual Life Ins. Co. v. Newton, 50 N. J. Law, 571, 14 Atl. 756, and was definitely adjudged in Bullock v. Bullock, 57 N. J. Law, 508, 31 Atl. 1024. If, therefore, the decree in controversy was of this simple character, it will sustain the writ.

The third question is: "Is capital stock in a domestic corporation subject to be levied upon under a foreign attachment issued out of the circuit court of the county of Camden, the certificate of stock being in the possession of the debtor out of the state?" This question is not full enough for certainty, but if it be assumed, as perhaps it may be on the certificate accompanying it, that the principal office of the corporation is in Camden county, and that under the corporate charter a complete formal transfer of the stock can be effected only by an entry on the books of the corporation, then the question should be answered in the affirmative. This was adjudged in Curtis v. Steever, 36 N. J. Law, 304. It was there held that, whether a share of corporate stock be treated as a "chose in action" or as some other kind of a "right," it was capable of being attached under our statute. The fact that the certificate of stock is outside of the state cannot disturb this conclusion. The certificate is only evidence of title to the right. The substance of the right is at the domicile of the corporation. Even if the situs rei were deemed to be attendant upon the person of the owner outside of the state, that would not necessarily defeat the levy of an attachment In National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl....