Dayton v. Boettner

• Court: New Jersey Supreme Court
• Writing for the Court: TRENCHARD, J.
• Citation: Dayton v. Boettner, 82 N.J.L. 421, 81 A. 726 (N.J. 1911)
• Decision Date: 20 November 1911
• Parties: JOHN M. DAYTON, DEFENDANT IN ERROR, v. FRANK A. BOETTNER ET AL., PLAINTIFFS IN ERROR

81 A. 726

82 N.J.L. 421

DAYTON

v. BOETTNER et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1911.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John M. Dayton against Frank A. Boettner and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Harry V. Osborne, for plaintiffs in error.

Rene P. Von Minden and Isaac P. Runyon, for defendant in error.

TRENCHARD, J. On July 17, 1902, Frank A. Boettner and Henry Pomerehne executed a bond to John M. Dayton for $1,880 payable in one year from the date thereof. Certain payments were made on account, and in 1910 Dayton brought this suit in the Supreme Court to recover the remainder due. The declaration contained a special count on the bond in debt and the common counts in assumpsit. The defendants pleaded payment to the special count, and nonassumpsit to the common counts. Upon trial at the Middlesex circuit, before the circuit court judge to whom the cause had been referred for trial by the justice of the Supreme Court holding the circuit, the plaintiff recovered a verdict, and the judgment entered thereon is here for review.

The first assignment of error challenges the refusal of the trial judge to strike out the common counts.

We are of opinion that such refusal was proper. The power to strike out a pleading in an action in the Supreme Court is lodged solely in that court or in a justice thereof, and is not possessed by a circuit court judge to whom the cause had been referred for trial pursuant to chapter 118 of P. L. 1906, p. 209. See section 110 of the practice act (P. L. 1903, p. 569); Hubbard v. Montross Metal Shingle Co., 79 N. J. Law, 208, 74 Atl. 254; McConnell v. Alpha Portland Cement Co., 74 N. J. Law, 730, 67 Atl. 346.

Moreover, the contention of the defendants that counts in assumpsit could not be lawfully joined with one in debt was not well founded. Under rule 16 of the Supreme Court, counts in debt and in assumpsit may be joined in the same suit.

But there is a reason of a fundamental character why the assignment of error under consideration cannot avail the defendants, and it is this: a refusal to strike out a pleading cannot be made a part of the record so as to be reviewable on a writ of error. It is only when the motion to strike out has prevailed that section 110 of the practice act (P. L. 1903, p. 569) permits error to be assigned thereon. Cooper v. Vanderveer, 47 N. J. Law, 178.

The second assignment of error, namely, that the trial judge erroneously admitted in evidence the bond on which the plaintiff founded his suit, is without merit. There was no subscribing witness to the bond, and a witness at the trial testified that he ...