Ewald v. Ortynsky
| Decision Date | 15 November 1909 |
| Citation | 76 N.J.E. 291,75 A. 233 |
| Parties | EWALD v. ORTYNSKY et al. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Action by George Ewald against Soter Stephen Ortynsky and others. Judgment for plaintiff, and defendants appeal. Dismissed.
For opinion below, see 71 Atl. 179.
Harry B. Brockhurst, for appellants.
Herbert Clark Gllson, for respondent.
The appellant is the defendant in the cause. It demurred to the bill of complaint for numerous causes. Four of these which went to the whole of the bill were held good by the Vice Chancellor, and accordingly an order was made on the motion erf the appellant allowing the demurrer. Later the appellant applied for a re-argument of the demurrer and obtained an order allowing the demurrer on the four grounds, and overruling it on the others, and then appealed upon the ground that the demurrer should have been allowed on all the grounds specified.
Only those who are aggrieved can appeal. Chancery Act, § 111 (P. L. 1902, p. 545); Coryell v. Holcombe, 9 N.J.Eq. 650; Green v. Blackwell, 32 N.J.Eq. 708. The appellant clearly was not aggrieved by the first order which was wholly in its favor. Nor is it aggrieved by the second order, erroneous though it is; for the effect of sustaining the demurrer on any ground was to sustain it altogether. Illustration may be found in cases where the reasons specified were held insufficient, but the demurrer was sustained for a reason alleged ore tenus. Stillwell v. McNeely, 2 N.J.Eq. 305; Barrett v. Doughty, 25 N.J.Eq. 379; Story, Eq. P1. § 464. Although the order is erroneous, it was entered on the motion of the appellant as a substitute for a proper order in his favor. A party cannot appeal from an order procured by himself. Hooper v. Beecher, 109 N. Y. 609, 15 N. E. 742. To permit him to do 'so would simply open the door to unnecessary appeals. No better Illustration can be found than this very case, since the second order could have had no possible object except to lay the foundation for this appeal. The appeal is dismissed with costs.
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Sharff v. Tosti
...that a party cannot complain on appeal of a decree entered in conformity to his admission or consent given in open court. Ewald v. Ortynsky, 76 N. J. Eq. 291, 75 A. 233. See, also, cases collected in 3 C. J. With respect to the defendant-appellant Cook & Genung Company, the case shows that ......
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In re McCabe's Estate, 204.
...on the motion of appellants and was in their favor. They may not now appeal therefrom or obtain a revision thereof. Ewald v. Ortynsky, 76 N.J.Eq. 291, 75 A. 233; Sharff v. Tosti, 108 N.J.Eq. 270, 154 A. Appellants complain of the allowance to respondent in the Prerogative Court of a counsel......
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