Dickerson v. Hodges

• Decision Date: 06 July 1887
• Parties: DICKERSON v. HODGES.
• Court: New Jersey Court of Chancery

10 A. 111

43 N.J.E. 45

DICKERSON

v. HODGES.

Court of Chancery of New Jersey.

July 6, 1887.

(Syllabus by the Court.)

On motion to strike out disclaimer. Bill to foreclose.

R. T. Stout, for the motion. Frank Durand, contra.

VAN FLEET, V. C. This is a foreclosure suit. The bill was filed January 21, 1887. John F. Hawkins was made a defendant, because in April, 1885, he procured a writ of attachment to be issued out of the Monmouth county common pleas against the owner of the equity of redemption of the mortgaged premises under which her interest therein was attached. Mr. Hawkins has answered, admitting the issuing of the attachment, and the seizure made under it, but says that the debt on which the attachment was founded was paid on the twenty-ninth of June, 1886, and the suit discontinued. Mr. Hawkins also files a disclaimer disclaiming all right, title, and interest, legal and equitable, of, in, and to the mortgaged premises, and every part thereof, and asks that the bill, as to him, be dismissed, with costs. His disclaimer is signed by his solicitor, but not by counsel, nor by himself in person, nor is it under oath.

The complainant moves, under paragraph 224 of the rules, to strikeout the disclaimer on three grounds: First, because it is not signed by counsel; second, because it is not under oath; and, third, because it is not signed by the defendant in person, and attested by a person competent to be a witness. The rule upon this subject, as given in Smith's Practice, is as follows: "A disclaimer, being accompanied with an answer, is put in upon oath. It must also be signed by the defendant, and in no case can such signature be waived with propriety, since no record will be received without signature which tends to the prejudice of the rights of the defendant." 1 Smith, Ch. Pr. 275. Mr. Harbour states the rule in substantially the same words. 1 Barb. Ch. Pr. 171. And Mr. Daniell says the court may give a defendant leave to file a disclaimer without oath, but not without signature, and that, when a disclaimer is filed without oath, the defendant's signature should be attested by some person competent to be a witness. He also says that it must be signed by counsel. 1 Daniell, Ch. Pr. 407.

The signature of counsel is not necessary. All pleadings in equity, according to the practice in England, must be signed by counsel, but the rule is different in this state. The signature of counsel is only necessary when required by statute, or an established rule of practice. An answer is sufficient if signed by a solicitor, or by the defendant himself. Freehold Mut. Loan Ass'n v. Brown, 28 N. J....