Jaudel v. Schoelzke

• Decision Date: 15 November 1920
• Citation: 112 A. 328
• Parties: JAUDEL v. SCHOELZKE.
• Court: New Jersey Supreme Court

112 A. 328

JAUDEL

v. SCHOELZKE.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

Appeal from Circuit Court, Essex County.

Action by Paul P. Jaudel against Oswald Schoelzke. Judgment for defendant, and plaintiff appeals. Affirmed.

Fleming & Handford, of Newark (Fred Herrigel, Jr., of Newark, of counsel), for appellant.

Charles A. Woodruff, of Newark, for respondent.

KALISCH, J. Attachment proceedings were instituted in the Essex county circuit court by the plaintiff-appellant, against the defendant-respondent, under section 84 of the Practice Act (3 Comp. St. 1910, p. 4070), which, inter alia, authorizes the issuance of a writ of attachment against the property of any person against whom a writ of summons might issue, upon proof, by affidavit or otherwise, that the plaintiff has a cause of action the nature of which he shall specify and that the defendant is not a resident of this state and that summons cannot be served upon him.

Section 85 of that act further provides that—

"Upon such proof being made, the court, judge or commissioner shall make an order awarding the plaintiff a writ of attachment against the goods and lands," etc., "belonging to the defendant in this state, * * * which order shall prescribe the amount of the bond. * * * Such order shall direct that the writ shall issue * * * in actions in tort for such sum as the officer shall under all the circumstances think proper. * * *" 3 Comp. St. 1910, p. 4077.

Section 86 makes the further provision that upon filing with the clerk of the court out of which the attachment may issue the order awarding the writ and the proof upon which the order is founded and the bond approved by the court, etc., such clerk shall issue to the sheriff or other officer a writ of attachment for the sum ordered, etc.

The plaintiff herein applied to a Supreme. Court commissioner for an order awarding the writ of attachment upon an affidavit which, among other things, contains these averments:

"One Carl Olfson, residing in this state, was authorized by Oswald Schoelzke, the defendant herein, to solicit offers for the sale of certain land and premises situated in the township of South Orange, N. J.; that on the morning of September 17, 1919, the said Carl Olfson, on the direction of deponent, sent a telegram to the said Oswald Schoelzke, making an offer of,$4,400 for the aforesaid land and premises, and advised that the said Oswald Schoelzke, if he desired to accept said offer, to wire his acceptance direct to deponent; that at 11:37 a. m. of the same day plaintiff received a telegram from said Oswald Schoelzke accepting said offer; that on September 19, 1919, said Oswald Schoelzke notified deponent that he would not carry out his said agreement and would not deliver a deed to deponent and that the said Oswald Schoelzke has ever since defaulted in said agreement, although deponent was at all times ready, willing, and able to pay the consideration therefor, * * * and that as a result deponent lost an opportunity to sell said premises at an advance of $1,500 upon the price deponent had agreed to pay, and the value of the said premises is $1,500 in excess of the contract price."

Then follows an averment that the defendant has a good cause of action against Oswald Schoelzke and that the latter is not a resident of this state, but resides in the state of Connecticut, and that a summons cannot be served upon him.

Upon that affidavit, which was the only proof produced by the plaintiff before the Supreme Court commissioner, that officer made an order awarding the writ of attachment for the sum of $1,500, and it was upon that order that the clerk of the court issued the writ of attachment for $3,000.

The Essex County circuit court, on motion of defendant's counsel, quashed the writ and set aside the proceedings upon the ground that the affidavit upon which the order awarding the writ was made was insufficient in substance and defective and did not warrant such order and that the writ was obtained and issued contrary to law.

From that order the plaintiff has taken an appeal to this court.

As there was a doubt cast upon the legal propriety of the plaintiff to come to this court with an appeal from the circuit court instead of going first, by certiorari, to the Supreme Court, because of the fact that the underlying ground of the appeal is an order made by the circuit court quashing a writ of attachment issued out of that court, we deem it important before considering the subject of the appeal that the doubt referred to should be first removed.

The fundamental question seems to be this: "Has the order quashing the writ of attachment the quality of a final judgment?" If it has that quality, then it is appealable directly from the circuit court to this court. The question as to the quality of an order quashing such a writ is no longer an open one in this state. Mr. Justice Trenchard, speaking for this court in Hanford v. Duchastel, 87 N. J. Law, 205, at page 207, 93 Atl. 586, at page 587, says:

"At the outset we remark that it is quite clear that the order quashing the writ of attachment is in effect an order in the nature of a final judgment."

In that case the proceeding was instituted in the Supreme Court and the writ was quashed by Mr. Chief Justice Gummere, and from his order an appeal was taken to this court, where the judgment was affirmed. The case was presumably heard by the Chief Justice sitting for the Supreme Court. No different legal situation arises out of an order made quashing a writ of attachment by the Supreme Court from that which is created by such an order when made by the circuit court. The reason for this is plain, as will appear from the following excerpts from the state Constitution.

Article 6, § 5, pi. 2, of the Constitution, inter alia, declares that—

The circuit court shall "have common-law jurisdiction concurrent with the Supreme Court; and any final judgment of a circuit court may be docketed in the Supreme Court and shall operate as a judgment obtained in the Supreme Court from the time of such docketing."

Placitum 3 declares:

"Pinal judgments in any circuit court may be brought by writ of error into the Supreme Court, or directly into the Court of Errors and Appeals."

Thus it is quite obvious that the plain constitutional declaration will not tolerate a differentiation of a final judgment in the Supreme Court from what it is in the circuit court, concerning the right of appeal.

In Defiance Fruit Co. v. Pox, 76 N. J. Law, Pitney, Chancellor, at page 486, 70 Atl. at page 461, said:

"But in this state, notably in this court, from an early period this limitation of the common-law writ of error has been to some extent departed from, in favor of a more liberal review, and by a long line of cases it has become, with us, established law that the writ of error is not confined to the review of proceedings in the course of the common law, but extends to decisions rendered in the exercise of the equitable powers of a court of law, or in the course of its statutory or summary jurisdiction, provided they result in a final disposition of the matter and have not rested in the discretion of the court."

See Eames v. Stiles, 31 N. J. Law, 490; Knight v. Cape May Sand Co., 83 N. J. Law, 597, at pages 599, 600, 83 Atl. 964.

If the present proceedings had been originally instituted in the Supreme Court and an order was made by that tribunal quashing the writ, then, under the adjudged cases referred to, an appeal to this court would have been the proper procedure. If, on the other hand, the Supreme Court refused to quash the writ, then, of course, no appeal would lie, because of the lack of a final judgment, and, as we have seen, under the common law and under the Constitution, a writ of error can only be sued out after final judgment. If under Hanford v. Duchastel, supra, an order quashing a writ of attachment has. the characteristic of a final judgment, when such order is made by the Supreme Court, so that the same may be removed by writ of error to this court, it naturally follows that there can be no reasonable ground on which to distinguish therefrom an order quashing a...