Etz v. Weinmann

Decision Date20 May 1930
Citation150 A. 436
PartiesETZ v. WEINMANN et al.
CourtNew Jersey Court of Chancery

Syllabus by the Court.

The verified petition of the defendants, petitioners, alleges that the reason for their failure to answer the bill, was, that not until the premises were advertised did the owner of the lands over which it was necessary to go to reach the rear entrance, inform petitioners, defendants, that the lands were private, and that he would not permit anyone to go over them to reach that entrance, which alone afforded access to the upper floors of the building; this put them upon immediate notice (if they did not have it before) concerning the easements of way to the rear of the mortgaged premises, and they should then have been diligent and filed the petition at once and prayed to stop the sale pending hearing thereof; instead, they did nothing and permitted the sale to proceed and bid the premises in themselves. Held, that laches now prevent their complaining upon this score.

Syllabus by the Court.

Defendants, petitioners, "deemed" that the sale by the sheriff of the mortgaged premises would bring at least a sum in excess of $15,000.00 (subject to two mortgages mentioned); that "some" person would bid at least that sum for the premises, and that their interest would thereby be protected; that to their great "surprise" the premises were sold for $500.00, which was their own bid through their agent. Held, that they cannot now be heard to complain of inadequacy of price.

Syllabus by the Court.

It is a settled principle of jurisprudence that in order to open a decree or judgment entered by default, the party applying must show both surprise and merits.

Syllabus by the Court.

Before confirmation of a judicial sale, if a material advance in price is offered, it should be secured by a deposit or by a bond; otherwise an actual purchaser whose bid is secured, might be lost by a mere promise; and it is the constant practice of the court not to consider these applications unless the advance in bid is secured.

Syllabus by the Court.

The power of the chancellor to order a decree to be signed nunc pro tunc, even after a very great interval has elapsed after pronouncing it, is beyond question; the court will enter a decree nunc pro tunc if satisfied from its own official documents that it is only doing now what it would have done then. Syllabus by the Court.

The Chancery Act, 1 Camp. St. 1910, p. 425, § 39, provides that when any cause shall be determined in that court (except upon dismissal by consent, etc.) the clerk shall enroll the proceedings, which shall be signed by the chancellor as of the date on which such decree was pronounced; and section 43 provides that if the chancellor by whom any cause shall have been finally heard and determined, shall go out of office and some other chancellor be appointed before the proceedings and final decree shall have been enrolled and signed in the book kept for that purpose, then it shall be the duty of his successor in office, or the chancellor for the time being, to sign such enrollment with his own name; and all such proceedings and decree so signed shall be as good and effectual in law to all intents and purposes as if the same had been duly signed by the chancellor who pronounced such final decree: these provisions have always been construed to apply to decrees themselves as well as to enrollment, and whether by the same chancellor or by successive chancellors.

Syllabus by the Court.

If a cause be not within the letter of an act, yet if by equitable construction it can be brought within the spirit and intent and within the mischief the act was intended to remedy, such construction should be adopted: it will not be intended that the legislature designed to produce an inequality unless the terms are so plain and explicit as not to be misunderstood.

Syllabus by the Court.

When objection is made to the court that one of its decrees remains unsigned and that its judgment therefore is void, the judge may then attach his signature to the decree and it then becomes valid, and that nunc pro tunc (certainly if it be so ordered), and our statute makes all proceedings and decrees, so signed, as good and effectual in law to all intents and purposes as if the same had been duly signed by the chancellor who pronounced such final decree.

Syllabus by the Court.

Opening a decree entered by default rests in the discretion of the chancellor and a refusal to open such decree will not be reviewed on appeal where there is no abuse of such discretion shown, and it is not the result of mistake or imposition practiced on the court.

Foreclosure suit by Jacob Etz and others against William A. Weinmann, George J. Perlman, and others. A decree pro confesso was entered and sale ordered and confirmed, and defendants named now petition to open the decree pro confesso and the final decree and for leave to answer.

Application denied.

Emanuel Kaplan, of Trenton, Louis Josephson, and Homan, Buchanan & Smith, of Trenton, for complainants.

Perlman & Lerner, of Trenton, for defendants.

WALKER, Chancellor.

This was an orderly foreclosure suit. The bill alleged that on September 15, 1926, George J. Perlman and William A. Weinmann mortgaged the premises in question to Jelco Realty Company for $17,000.00; that on September 12, 1929, George J. Periman and wife and William A. Weinmann and wife conveyed the mortgaged premises to Pinckney Lee Glantzberg; that subsequent to the execution and recording of the mortgage Periman and Weinmann leased certain parts of the premises to Smolwitz and Wolfson; that by written assignment October 5, 1926, the Jelco Realty Company assigned the mortgage (with the bond accompanying the same) to the complainants; that on September 15, 1929, the entire principal sum of $17,000.00, plus interest, became due and payable; that after the proper demand the same remained unpaid and the bill praying for the sale of the mortgaged premises etc. was filed; that such proceedings were thereupon had in foreclosure suit; that on November 25, 1929, a decree pro confesso was entered taking the bill as confessed against the defendants George J. Periman, William A. Weinmann, Irving Smolwitz and Abe Wolfson, and on December 5, 1929, a similar decree pro confesso was entered against the defendants Pinckney Lee Glantzberg and Ernest Glantzberg, they having been published against; that on December 12, 1929, Emanuel Kaplan, solicitor of complainants, lodged with the clerk in chancery a final decree, reciting the above facts, and stating that on reading and tiling the report made in the case by one of the masters in this court, it was ordered, adjudged and decreed that the master's report stand ratified and confirmed, that the complainants were entitled to the sum of $17,037.33, with interest and costs, and ordering that a writ of fieri facias be issued to the sheriff of Mercer commanding him to make sale etc. to satisfy said debt, interest and costs.

On January 14, 1930, the sheriff of Mercer filed his report in writing, under oath, in the office of the clerk in chancery, certifying that (having first duly advertised the same) he sold the lands and premises described in the execution to Pasquale Astore for $500.00, and in the affidavit annexed swore that the mortgaged premises were sold for the highest and best price the same would bring in cash at the time of sale. This report remained on file for the requisite time, when, no written (or other) objection to the confirmation of the sale being made, the same was by order duly confirmed, and the sheriff directed to execute a good and sufficient conveyance to the purchaser or his assigns for the mortgaged premises.

On March 24, 1930, William A. Weinmann and George J. Periman filed a petition herein setting out inter alia the following: that the premises mentioned in the bill, known as 109 North Broad Street, were purchased by the petitioners from the Jelco Realty Company, assignor of the complainants, without stating the date of purchase; that the agreement for the purchase of the premises was made August 24, 1926, whereby they agreed to purchase the premises from Jelco Realty Company at a valuation of $97,000.00, subject to two mortgages, one for $50,000.00 and the other for $15,000.00; that the mortgage mentioned in the bill of complaint was given to the Jelco Realty Company to secure part payment of the purchase price of said premises; that at the time of making of the agreement and deed for the mortgaged premises the Jelco Realty Company was composed of the three complainants, Etz, Levinson and Jaspan, and at the time of the commencement of the foreclosure suit the title in fee simple in the premises in question was in Pinckney Lee Glantzberg; that on December 12, 1929, a paper writing was filed in this cause endorsed, "Pinal Decree;" that the said paper writing, however, was not signed by this court at the time the writ of fieri facias was issued, and that the sale took place on January 8, 1930, at the time said decree was still unsigned; that title in fee simple to the premises at the time of sale was still in Pinckney Lee Glantzberg.

The petitioners then averred that they had a valid and meritorious defense to the said action in that at the time of the making of the said agreement, and until the present time, the only entrance to the upper floors of the building situate on the premises was and is through a doorway in the rear of the building; that at the time the Jelco Realty Company, through its officers and agents, represented to the petitioners that the entrance to said upper floors could be reached over land that was public and which was for the free and common use of the owners of the property in question, together with other owners; that the representation was false, that at that time or now they cannot be reached except over lands belonging to a third person, which are private lands; that Jelco Realty Company intended that the...

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5 cases
  • Robinson-Shore Development Co. v. Gallagher
    • United States
    • New Jersey Superior Court
    • August 14, 1956
    ...never accorded them. The defendants argue that the court has the power to enter a judgment or order Nunc pro tunc, Etz v. Weinmann, 106 N.J.Eq. 209, 150 A. 436 (Ch.1930), and although not specifically sought, suggest that if necessary such an action could be accomplished. Even conceding for......
  • Schulwitz v. Shuster, A--526
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 15, 1953
    ...was required to show a meritorious case (cf. Haines v. Seabrook Farms Co., 99 N.J.L. 273, 122 A. 748 (E. & A.1923); Etz v. Weinmann, 106 N.J.Eq. 209, 150 A. 436 (Ch.1930); Hanover Trust Co. v. Rizzo, 110 N.J.L. 581, 166 A. 326 (Sup.Ct.1933)). These principles of law remain unchanged by Rule......
  • White v. State Bd. of Tax Appeals
    • United States
    • New Jersey Supreme Court
    • November 1, 1939
    ...123 A. 530; In re Judges in Chancery, 101 N.J.Eq. 9, 11, 137 A. 151; Caruso v. Caruso, 102 N.J.Eq. 393, 401, 141 A. 16; Etz v. Weinmann, 106 N.J.Eq. 209, 225, 150 A. 436. But whatever may be the ethical propriety or otherwise on this point, it cannot well be said that the testimony was lega......
  • Loranger v. Alban
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 28, 1952
    ...was required to show a meritorious case (cf. Haines v. Seabrook Farms Co., 99 N.J.L. 273 122 A. 748 (E. & A. 1923); Etz v. Weinmann, 106 N.J.Eq. 209, 150 A. 436 (Ch.1930); Hanover Trust Co. v. Rizzo, 110 N.J.L. 581, 166 A. 326 (Sup.Ct. 1933)). These principles of law remain unchanged by Rul......
  • Request a trial to view additional results

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