Kaufman v. Jurczak

• Decision Date: 28 December 1927
• Citation: 139 A. 716
• Parties: KAUFMAN v. JURCZAK et al.
• Court: New Jersey Court of Chancery

139 A. 716

KAUFMAN

v. JURCZAK et al.

Court of Chancery of New Jersey.

Dec. 28, 1927.

(Syllabus by the Court.)

Suit by Samuel Kaufman against Stefan Jurczak and others to foreclose a mortgage. On motion to amend proceedings. Motion denied.

Harry T. Davimos, of Newark, for complainant.

WALKER, Chancellor. The solicitor of the complainant has handed to the court a petition of himself as such solicitor. It alleges that the bill of foreclosure was filed and a final decree entered; that subsequently it was discovered that there was an outstanding judgment (meaning that it was recovered before bill filed), and that the judgment creditor was not made a party defendant; that the judgment creditor has stipulated that he shall be bound by all the proceedings and decrees in the matter; that a supplemental report has been filed (but has not) setting forth the priority of the lien of the judgment; and the petitioner (solicitor) prays that the final decree shall be amended so that the same shall include the judgment creditor in the order of priority set forth in the master's report (meaning supplemental report), and that he shall be bound by all the decrees heretofore entered herein, and that the report of the master as to the supplemental matters (supplemental report) shall be confirmed and the mortgaged premises sold to raise and pay the money set forth in the final decree and amended final decree; that an execution issue pursuant to said decrees; and that the judgment creditor be adjudged and decreed to be barred from all equity of redemption, and for other relief. The petition is verified by the oath of the solicitor.

This petition is entirely unwarranted and irregular, and must be returned to the solicitor. An attorney, says Blackstone, is one who is put in the place, stead, and turn of another to manage his matters of law. 3 BL Com. p. 26. And, says the same author, to practice in the Court of Chancery it is necessary to be admitted a solicitor therein. Id. With us the successful applicant is admitted to both degrees at the same time. Obviously an attorney in a law court, or a solicitor in chancery, is the mere agent or representative of a party, but not a party himself. And it has already been decided that no one but a party to a suit can make any motion in it except for the purpose of being made a party; and a motion made by a stranger to the suit will be dismissed. Collins v. Kiederling, 87 N. J. Eq. 12, 97 A. 948; N. J. Photo Engraving Co. v. Schonert & Sons, 95 N. J. Eq. 12, 122 A. 307.

The conduct of suits belongs to the parties and they only have the right to apply for order or direction. Collins v. Kiederling, supra, page 14 (97 A. 918). A solicitor, not being a party, is a stranger to a suit in a legal and technical sense. He is only the representative of a party, and can only file papers in the name of his client, being presumed to have authority to do so. This petition, therefore, will be returned to its author. But, not being the only defect in the proceedings, there will have to be further amendment.

The defendants are Stefan Jurczak and Mary, his wife, the mortgagors, and George Baldwin, the holder of another mortgage prior in date of execution, but which was postponed to the lien, of complainant's mortgage.

These defendants being brought into court by subpœna, and not having answered, the complainant entered a decree pro confesso and order of reference, in which, after the bill was taken as confessed, it was further ordered that it be referred to a master to ascertain and report the amount due to the complainant for principal and interest upon the mortgage held by him upon the premises described in the bill, and to report accordingly. So that the master, by the terms of the reference, was restricted to reporting upon the complainant's mortgage. Instead, he filed a report, in which he certified the amount due to the complainant and to the defendant Baldwin, and that the latter's mortgage was postponed in favor of complainant's, so that complainant is entitled to priority in payment. Here the master traveled outside of his reference and assumed to report upon something not referred to him. This has been decided to be irregular. A master's authority as to the subjects and extent of his examination and report is limited and controlled by the order of reference, and he must confine his inquiry to the directions of such order. Greenberg v. Greenberg, 99 N. J. Eq. 461, 464, 133 A. 768. The report Was filed, and when the master parted with it, either to the solicitor of complainant for...