Holmes v. Milligan.

• Decision Date: 28 December 1943
• Docket Number: No. 421.,421.
• Citation: 36 A.2d 15,131 N.J.L. 125
• Parties: HOLMES v. MILLIGAN.
• Court: New Jersey Supreme Court

131 N.J.L. 125

36 A.2d 15

HOLMES

v.MILLIGAN.

No. 421.

Supreme Court of New Jersey.

Dec. 28, 1943.

Action by Louise Trost Holmes against Chester Milligan on a contract alleged to have been induced by fraud. On rule to show cause why an order holding defendant to bail should not be dismissed.

Rule to show cause discharged.

October term, 1943, before CASE, DONGES, and PORTER, JJ.

Elsie L. White and Louis Steisel, both of Jersey City, for plaintiff-respondent.

James D. Connell and Joseph B. McFeely, both of Hoboken, for defendant-prosecutor.

CASE, Justice.

The action is on a contract alleged to have been induced by fraud. The chronology of the various steps in the cause is:

April 1, 1943 Affidavit

April 1, 1943 Order to hold to bail

April 6, 1943 Capias issued

April 7, 1943 Affidavit and order to hold to bail filed with the Clerk of the Supreme Court

April 7, 1943 Arrest on capias

April 7, 1943 Bail given and defendant discharged

April 7, 1943 Notice of motion to discharge order, returnable April 17, 1943

April 15, 1943 Affidavit of merits filed

May 4, 1943 Answer filed

June 4, 1943 Reply filed

June 23, 1943 Motion to discharge order denied.

Sept. 9, 1943 Rule to show cause issued

The question is whether the failure to have the affidavit and order on file at the Clerk's office in Trenton before the capias issued was fatal to the validity of the capias.

The pertinent statutory provisions are R.S. 2:27-72 and 2:27-73, N.J.S.A.

Sec. 72:-‘A capias ad respondendum shall not issue in an action founded upon contract except upon proof, by affidavit or otherwise, to the satisfaction of the court in which the action is about to be commenced or to a judge thereof or supreme court commissioner, that there is a debt or demand founded upon contract, express or implied, due to plaintiff from defendant, specifying the nature and particulars thereof, and establishing one or more of the following particulars:

‘a. That defendant is about to remove any of his property out of the jurisdiction of the court in which the action is about to be commenced with intent to defraud his creditors; or

‘b. That defendant has property or choses in action which he fraudulently conceals; or

‘c. That defendant has assigned, removed or disposed of, or is about to assign, remove or dispose of, any of his property with intent to defraud his creditors; or

‘d. That defendant fraudulently contracted the debt or incurred the demand.

‘This section shall not apply to proceedings as for contempt to enforce civil remedies.’

Sec. 73:-‘Upon proof made as provided by section 2:27-72 of this title, the court, judge or commissioner shall make an order to hold defendant to bail * * *. On the filing of the proofs required by said section 2:27-72 and the order to hold to bail the capias shall issue * * *.’

On matters incident to the issue that statute is practically unchanged from Section 1 of ‘An Act respecting imprisonment for debt in cases of fraud. Revision-Approved April 15, 1846’, Nix.Dig. p. Þ30, except that there are two numbered sections where formerly there was but one section, with the result that there is now a somewhat greater demarcation between the respective provisions. At no time, however, have the authorizing words now captioned as Sec. 73 been within the immediate application of the strong negative mandate contained within the preceding section. That prohibition, now as at the beginning (cf. ‘An Act to abolish Imprisonment for Debt,’ passed March 9, 1842, P.L. 1841-2, p. 130), bears immediately upon the nature and content of the proofs upon which the writ of arrest may issue and the submission of the proofs to a judicial officer as a necessary preliminary. We give some weight, in the construction, to that distinction.

The question, however important it may be as a matter of statutory construction, is technical. The proofs were sufficient in form and substance to justify an order to hold to bail and had been submitted to and considered by the proper judicial officer; that officer had, in due form, made the order to hold to bail; upon that foundation the capias issued. At least, no contention otherwise is made before us and we therefore assume, for the purposes of this argument, that the proceedings are sound except on the disputed point. At the time the capias was served the order and affidavits were on file but they had not been at the Clerk's office the day before when the capias was issued; and that omission is the defect complained of. It does not appear that the defendant was harmed, or how anyone in like circumstance could be harmed, by that procedure. That does not answer the question; it simply marks the question as technical.

In Wert v. Strouse, 38 N.J.L. 184, it was said, on a motion to discharge the defendant in a tort action from arrest, that although in contract actions the affidavits and the order for bail must both be filed before the capias was issued the delay of a few days was not fatal in actions founded on tort, and this because of the different wording in the respective statutes of that day. The statement of the law applicable to contract actions was obiter. Nevertheless, the obiter was repeated in Kryn v. Kahn, Sup., 54 A. 870 (not officially reported). Logan v. Lawshe, 62 N.J.L. 567, 41 A. 751, 753, was also a tort action and, the only point then open being that there was a period of only ten days (viz., not the period of fifteen days which the defendant contended there should have been under the statute extant at the time) between the test of the writ and the day of its return, the court said: ‘The defendant appeared to the writ and filed special bail. The practice appears to be quite settled that an appearance in conformity with the purpose of the writ is a waiver of all defects, at least those that are formal, either in the process or in the service’, citing in support thereof Ayers v. Swayze, 2 Southard 812, 5 N.J.L. 812; Cornell v. Matthews, 27 N.J.L. 522, 3 Dutcher 522, 524; Clifford v. Overseer of the Poor, 37 N.J.L. 152, 8 Vroom 152; the first of which had to do with an alleged defect in the manner of serving the summons, the second with a summons irregularity that was subject to amendment, and the third with a doubtful insufficiency in the description of the defendant's relationship as a husband and father in a neglect case. It will be observed, therefore, that neither the Logan decision nor the decisions cited by it in support are squarely on our question. Hand v. Nolan, 136 A. 430, 1 Misc. 428, was an application to set aside an order to hold to bail in a tort action, and Mr. Justice Katzenbach, sitting alone, decided that the distinction drawn in Wert v. Strouse, supra, between tort and contract actions was no longer in point because the intervening statute of 1903 had made the proceeding similar in the two classes of action and that since the capias had issued before...