Czajowski v. Arlington Realty Co.

• Decision Date: 15 October 1946
• Docket Number: No. 29303.,29303.
• Citation: 50 A.2d 151
• Parties: CZAJOWSKI v. ARLINGTON REALTY CO. et al.
• Court: New Jersey District Court

50 A.2d 151

CZAJOWSKI

v.ARLINGTON REALTY CO. et al.

No. 29303.

District Court, Second Judicial District, Monmouth County, New Jersey.

Oct. 15, 1946.

Action by Michael L. Czajowski against Arlington Realty Company and Charles H. Walker.

Order in accordance with opinion.

Ira Katchen, of Long Branch, for plaintiff.

Charles H. Walker, of Asbury Park, for defendant.

EVANS, Judge.

Judgment was originally entered in this matter after jury trial on May 28, 1945. Considerable proceedings were thereafter had in the form of application for new trial and appeal, all of which failed as far as the defendant is concerned and culminated in a levy being made upon a bank account of the defendant corporation. Orders to show cause were argued; and finally the execution was returned satisfied by the constable.

Since that satisfaction the Court of Errors and Appeals of this State has determined in Zuest v. Ingra (Zuest v. Farina), 134 N.J.L. 15, 45 A.2d 810, that the District Courts of our state do not have jurisdiction in causes such as originally presented and determined here. Defendant now wants his money back.

Defendant cites many cases to support the right of this court to reopen its judgment but they are not in point, e. g., Greenbaum v. Higgins, 147 A. 722, 7 N.J. Misc. 1012, was an instance in which the court reopened the judgment because the defendant had not had notice of relisting, which action was based on the inherent power of a court to vacate its judgment, void for want of jurisdiction, because the parties were not in court. To a similar effect was the action taken by this court in Kenter Co., Inc., v. Errath, 32 A.2d 592, 21 N.J.Misc. 214.

Palansky v. Reich, 164 A. 701, 11 N.J.Misc. 106, affirmed 111 N.J.L. 241, 168 A. 297, was not a granting of a new trial but a vacation of a judgment because of an apparent lack of jurisdiction on the face of the state of demand.

In Zicarelli v. General Finance Co., 186 A. 726, 14 N.J.Misc. 711, the judgment was set aside to prevent a palpable fraud. On the trial day defendant's attorney showed plaintiff's attorney a full release whereupon plaintiff's attorney agreed to discontinue and defendant's attorney left. Instead of doing what he promised, plaintiff's attorney proceeded to prove case and secured judgment.

In Geithner v. Paechiana, 150 A. 240, 8 N.J.Misc. 384, it appears that the case was to be adjourned by agreement of attorneys; but, notwithstanding, the plaintiff's attorney proceeded to take judgment in absence of defendant's attorney. To prevent fraud upon opposing counsel and court, the judgment was reopened.

The Supreme Court in Gimbel Bros. v. Corcoran, 192 A. 715, 716, 15 N.J.Misc. 538, vacated a judgment despite a previous denial of a rule to reopen. The vacation was upon the basis of its being a void judgment, the affidavit for entry of judgment not disclosing any proof against Mary Corcoran. The Supreme Court said, ‘It is the duty of the court to annul an invalid judgment. Its power to do so resides in its inherent jurisdiction and control over its judgments.’

Applicant cites Manowitz v. Kanov, 107 N.J.L. 523, 154 A. 326, 75 A.L.R. 1464, as the law for the practice of an order to show cause being the proper method of canceling the judgment and execution.

The...