Glasser v. Feller.

• Decision Date: 20 April 1948
• Docket Number: 158/453.
• Citation: 58 A.2d 546
• Parties: GLASSER et al. v. FELLER.
• Court: New Jersey Court of Chancery

58 A.2d 546

GLASSER et al.

v.FELLER.

158/453.

Court of Chancery of New Jersey.

April 20, 1948.

Suit by Benjamin F. Glasser and others against Daniel Feller, executor of the estate of Joseph Feller, deceased. On defendant's motion to strike the complaint.

Motion denied.

Syllabus by the Court.

1. Where the bill of complaint does not itself embody any disclosure of the facts from which the conclusion of res judicata can be derived, a motion under Rule 69 is inappropriate and ineffectual. In all such situations the defensive contention should be asserted by way of answer or by an answer in lieu of plea.

2. The purpose of an answer in lieu of plea is to present new matter not apparent in the bill.

3. When a bill is dismissed and the court protects the complainant against an estoppel by adding to its decree that it shall be without prejudice, the decree is not necessarily a bar to all future consideration of the equitable rights of the parties.

Harold J. Sklarew, of New Brunswick, for complainants.

Herman H. Anekstein, of New Brunswick, for defendant.

JAYNE, Vice Chancellor.

The present motion introduces two points for consideration and decision. First, can the defense of res judicata be interposed by means of a motion to strike a bill of complaint which contains no reference whatever to the former litigation? Second, what is the force and range of effectiveness of a decree of dismissal in a former cause which was made and entered expressly ‘without prejudice’?

A motion to strike a bill of complaint pursuant to our modern practice is essentially the equivalent of the former demurrer which prayed judgment whether the defendant should be compelled to answer the bill. The modern motion has a precisely similar function. The material matters of fact adequately charged in the bill are for immediate purposes admitted, and the inquiry is confined to the factual and legal substance of the bill itself. State v. Foster Wheeler Corp., 133 N.J.Eq. 554, 33 A.2d 699.

And so, where, as here, the bill of complaint does not itself embody any disclosure of the facts from which the conclusion of res judicata can be derived, a motion under Rule 69 is inappropriate and ineffectual. Rules of Court of Chancery, N.J.S.A. tit. 2. In all such situations the defensive contention should be asserted by way of answer or by a answer in lieu of plea. Passaic Match Co. v. Helio Match Co., N.J.Sup., 70 A. 466 (not elsewhere reported).

In Isham v. Cooper, 56 N.J.Eq. 398, 404, 37 A. 462, 464, affirmed 56 N.J.Eq. 409, 39 A. 760, Vice Chancellor Emery stated: ‘In relation to obtaining the benefit of a former adjudication, our practice, as I understand it, permits the defense to be raised by answer as well as by a formal plea, following in this respect the general rule of the American courts. Lyon v. Tallmadge, 14 Johns., N.Y., 501, 511; Black Judg. § 783.’

The purpose of an answer in lieu of plea is to present new matter not apparent in the bill. Davis v. Davis, 57 N.J.Eq. 252, 41 A. 353; Kelly v. Masionis, 79 N.J.Eq. 644, 82 A. 329.

Pertinent is the observation of Chief Justice Case in Stambovsky v. Cohen, 124 N.J.Eq. 290, 1 A.2d 456, 458: ‘The suggestion that the defendant's proper procedure was to move to strike, with the effect of a demurrer, is without force inasmuch as the matter injected by the answer is not to be found in the bill.’ The following citations seem to indicate the normal practice: Seeley v. Adams, N.J.Sup., 76 A. 462; Waln v. Meirs, 80 N.J.Eq. 488, 499, 85 A. 260; Schneider v. Schmidt, 84 N.J.Eq. 18, 92 A. 789, affirmed 85 N.J.Eq. 207, 95 A. 1079; McGarvey v. Young, 100 N.J.Eq. 174, 176, 134 A. 744, affirmed 101 N.J.Eq. 302, 137 A. 918; Harner v. Harner, 116 W.Va. 530, 182 S.E. 291, 101 A.L.R. 1325.

Having resolved that the present motion to strike the bill is improper, a discussion of the second point is not momentarily required. Nevertheless, to accommodate counsel I shall divulge my opinion concerning it. Cf. Nat. Bank of New Jersey v. Lefkowits, 107 N.J.Eq. 265, 266, 152 A. 328.

An answer would undoubtedly aver that there was a former suit in this court between the same parties embracing the same cause of action as that now alleged in the present bill. Glasser v. Feller, 141 N.J.Eq. 90, 56 A.2d 137, 138. In announcing my decision in the former cause, I stated: ‘The inadequacy of the proof obliges me to dismiss the bill, without prejudice. Decree accordingly. No costs.’ In conformity with my conclusion a final decree was entered declaring ‘that the complainants' bill of complaint be and the same is dismissed, without prejudice and without costs.’

It is my recollection that at the final hearing of the former case, counsel for the defendant refrained from offering any adverse...