Lutter v. Neubauer

• Decision Date: 17 June 1924
• Docket Number: No. 215.,215.
• Citation: 125 A. 113
• Parties: LUTTER v. NEUBAUER.
• Court: New Jersey Supreme Court

125 A. 113

LUTTER

v. NEUBAUER.

No. 215.

Supreme Court of New Jersey.

June 17, 1924.

(Syllabus by the Court.)

Certiorari to District Court of Newark.

Action by Herman Lutter against Albert Neubauer. From a judgment for defendant, plaintiff brings certiorari. Affirmed.

Argued February term, 1924, before TRENCHARD, PARKER, and CAMPBELL, JJ.

Louis J. Beers and Edward A. Schilling, both of Newark, for prosecutor.

Walter C. Ellis, of Newark, for respondent.

TRENCHARD, J. The certiorari in this ease brings up the proceedings and judgment in the First district court of the city of Newark in favor of the defendant below in a suit brought to recover for the board and lodging of the defendant in the year 1916.

The record discloses the following facts and circumstances: On September 2, 1921, Albert Neubauer, the defendant, an old man, was served with the summons while an inmate of the Newark City Almshouse. No appearance having been made or entered by the defendant, a "judgment by default" was entered against him for $483.12 on October 8, 1921, on affidavit filed by the plaintiff pursuant to section 146 of the" District Court Act as amended by chapter 169 of the Laws of 1913 (1st Supp. C. S. p. 498). The defendant died at the almshouse on October 13, 1921, five days later. On November 2,

1921, Rose Seipel was appointed administratrix of the defendant's estate, and on January 11, 1922, the plaintiff filed his judgment claim with her. This was the first knowledge the defendant's administratrix had of the action against the defendant, and she thereupon commenced an investigation and subsequently consulted counsel. On April 21, 1922, upon affidavits submitted, the district court granted a rule to show cause "why a new trial should not be granted, or a judgment rendered in favor of the defendant instead of the plaintiff," and, after considering the answering affidavits, on May 9,

1922, ordered that such "judgment be reopened for the purpose of permitting the administratrix of the estate of the said defendant to be substituted as the defendant and to present a defense on the merits." After numerous adjournments, the court, on October IS, 192.3, heard the evidence of both parties and rendered judgment for the defendant.

The reasons assigned by the plaintiff below, and prosecutor here, for setting aside such judgment in favor of the defendant really come down to this: That the district court had no jurisdiction to open the original judgment, and hence none to render the subsequent judgment. We think that such reason has no substantial basis in law or fact. The evidence upon which the court acted in opening the judgment disclosed that the defendant had a good and meritorious defense to the action, and that for several months prior to the service of the summons, and continuously thereafter, the defendant was absolutely incompetent mentally to understand or transact any business affairs.

Now, although an insane person may be sued at law for an alleged debt, his incapacity requires that he be protected, and to that end, if he is of full age, the court will appoint an attorney to perform that function for him, even though there has been no prior adjudication of insanity. Wilkinson, Gaddis & Co. v. Markert, 65 N. J. Law, 518, 47 Atl. 488; Van Horn v. Hann, 39 N J. Law, 207; Janvier v. Coombs, 31 N. J. Law, 240.

Here the defendant's interest was not thus protected, for the reason that the court was entirely unaware of the defendant's legal disability. The plaintiff, however, contends that, "since the new trial was not based upon newly discovered evidence," and the application was not made within 30 days after judgment, the court had no jurisdiction to open the original judgment and render another judgment. He relies upon section 17 of the District Court Act (C. S. p. 1959), which declares that—

"In every case tried in any of said courts the judge may, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceedings, provided that, application for such new trial, except where the said application is based upon newly-discovered evidence, shall be made within thirty days after judgment."

No doubt, generally speaking, as stated in Rosner v. Cohn, 81 N. J. Law, 345, 79 Atl. 1056, "at common law, there was a limitation that a new trial would not be granted after the term had expired, and the Legislature, by section 17, in lieu of the term, inapplicable to a district court, has prescribed the limit of 30 days, except in cases of newly discovered evidence," and it has been held that the district court has no authority to grant a new trial upon an application made more than 30 days after judgment, unless the application is based upon newly discovered evidence. Flaherty v. Pack, 73 N J. Law, 103, 62 Atl 269, affirmed 74 N. J. Law, 592, 65 Atl. 1118.

But we think that this case does not fall within that rule. The default judgment was not the result of a case "tried." Moreover, we do not view the action of the district court as the granting of a "new trial" within the meaning of section 17 of the District Court Act, We look upon it as the setting aside of a "judgment by default,"...