Grimshaw v. Carroll

• Decision Date: 06 March 1899
• Parties: GRIMSHAW v. CARROLL et al.
• Court: New Jersey Supreme Court

42 A. 733

62 N.J.L 730

GRIMSHAW

v. CARROLL et al.

Court of Errors and Appeals of New Jersey.

March 6, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Mary M. Grimshaw against John Carroll and Robert Paterson. Judgment for defendants, and plaintiff brings error. Affirmed.

F. K. Greenberg and Malcolm MacLear, for plaintiff in error.

Frank E. Bradner, for defendants in error.

DIXON, J. In an action of ejectment the plaintiff deduced her claim of title from one of the defendants through the docketing in the Essex common pleas of a so-called judgment entered against him in the Newark district court. At the trial the plaintiff was nonsuited on the ground that the docketing was effected without an affidavit of belief that the debtor was not possessed of goods and chattels sufficient to satisfy the amount due, such an affidavit being, in the opinion of the trial judge, a statutory prerequisite to lawful docketing. By the decision of this court in Tasto v. Klopping, 43 N. J. Law, 448, it is settled that, unless the requirements of the statute are complied with, the docketing is void. We must, therefore, consider whether the statute requires such an affidavit to be made, in order to authorize the clerk of the common pleas to docket the judgment of a district court. The pertinent provisions are found in the seventy-seventh section of the district court act of March 9, 1877 (1 Gen. St. p. 1228), and the fourth and fifth sections of an act relative to their jurisdiction and practice, approved March 27, 1882 (Id. p. 1260). Section 77, just mentioned, prescribes three preliminaries for the legal docketing of a judgment: (1) That an execution out of the district court be issued and properly returned (2) that there be filed with the clerk of the common pleas a transcript of the proceedings from the docket of the district court, and a certified copy of the state of demand, the set-off, and the return of the constable; and (3) that there be likewise filed an affidavit of the party, his attorney or agent, that at the time of filing such transcript a certain amount stated, not less than $10, was still due, and that he believed the debtor was not possessed of goods and chattels sufficient to satisfy the amount due. The act of March 27, 1882, above mentioned, does not purport to repeal the said section 77, but enacts that in docketing a judgment from a district court it shall only be necessary to file with the clerk of the common pleas a statement...