Green v. Heritage

• Decision Date: 16 June 1899
• Citation: 43 A. 698,63 N.J.L. 455
• Parties: GREEN v. HERITAGE et al.
• Court: New Jersey Supreme Court

43 A. 698

63 N.J.L. 455

GREEN

v. HERITAGE et al.

Supreme Court of New Jersey.

June 16, 1899.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by Charles W. Green, administrator, against Susan E. Heritage and others. Judgment for plaintiff. Defendants bring error. Affirmed.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

McEwan & McEwan, for plaintiffs in error.

Wm. L. Clark, for defendant in error.

COLLINS, J. The plaintiffs in error and two other persons sued the defendant in error and others in the supreme court of New York, and were defeated in the action; the defendants recovering several judgments for costs. Suit was brought on one of such judgments in a district court of Jersey City. Summons was issued against the six judgment debtors, but was served on only four of them. The state of demand was against all, and correctly stated the judgment The allegations are meager, but sufficient for a district court, where no great particularity in pleading is requisite. On the return day of the summons, discontinuance was entered as to the two who were not served, and the district court gave judgment against the four remaining defendants. On appeal the circuit court of the county affirmed the district court, and the judgment of affirmance is now before us for review.

Under the revision of the district court act (P. L. 1898, p. 556), the only jurisdiction of the circuit court on an appeal from a district court is where either party "shall be dissatisfied with the determination or direction of said court in point of law or upon the admission or rejection of evidence." Section 206. Our writ of error can review nothing more than the circuit court could lawfully decide. In view of this limited jurisdiction, it is doubtful if some of the matters of which complaint is made before us are cognizable under this writ; but, as we find in them nothing erroneous, it is unnecessary to decide that question.

It is assigned as error that a foreign administrator has no standing to sue in this state without first filing in the court in which he brings his action an exemplified copy of his letters of administration. That is true only when he sues in the right of his intestate,—not in a case where he is a party to the transaction, although as administrator.

It is also assigned as error that there was no proof before the district court of identity of the judgment debtors. Their names afforded sufficient prima facie identification. Hatcher v. Rocheleau, 18 N. Y. 86; 16 Am. & Eng. Enc. Law, 119.

The assignment chiefly pressed was the discontinuance as to two of the judgment debtors, and the giving of judgment against the others only. On demands ex contractu, every person liable has normally the right to demand that all liable with him shall be joined in any suit against him on the same liability. This is a matter of privilege, and nonjoinder must be pleaded in abatement. Dicey, Parties, rule 49; Mershon v. Hobensack, 22 N. J. Law, 372, affirmed in 23 N. J. Law, 580; Lieberman v. Brothers, 55 N. J. Law,...