McMahon v. Amoroso

• Decision Date: 18 May 1931
• Docket Number: No. 78.,78.
• Citation: 154 A. 840
• Parties: McMAHON v. AMOROSO et al. DIAMOND v. McMAHON.
• Court: New Jersey Supreme Court

154 A. 840

McMAHON

v. AMOROSO et al.

DIAMOND

v. McMAHON.

No. 78.

Court of Errors and Appeals of New Jersey.

May 18, 1931.

Syllabus by the Court.

The prohibition against a collateral attack, referred to in section 15 of the act relating to the sales of land (4 Comp. St. 1910, p. 4679), only applies to conveyances made by any public or municipal authority, and does not extend to a deed given by a sheriff under an execution of a court.

Syllabus by the Court.

Where the record of a District Court indicates certain irregularities, which might have been held erroneous in a direct proceeding, and there is nothing in the record that would render the judgment void, and the court having had jurisdiction to render the judgment, and having rendered it, the law, when the judgment is collaterally attacked, will make all presumptions necessary to sustain it.

Syllabus by the Court.

It is well-settled that, in the absence of fraud of the parties, a judgment of a court of general jurisdiction cannot be collaterally impeached if the court had jurisdiction of the subject-matter of the controversy and the parties.

Appeal from Court of Chancery.

Suit by Margaret McMahon against Vincent Amoroso, Jr., and others to foreclose a mortgage. On petition for surplus moneys and on exceptions to the master's report. From the decree rendered (106 N. J. Eq. 363, 150 A. 847), defendant Herman M. Diamond appeals.

Affirmed.

John Warren, of Jersey City, for appellant.

Peter Bentley, of Jersey City, for respondent.

HETFIELD, J.

The respondent, John J. McMahon, petitioned the Court of Chancery for an order directing that certain surplus moneys received by the sheriff of Hudson county, from a sale of lands under a foreclosure decree, be paid to the petitioner. The facts presented by the record show that the property in question, which was situated in Woodcliffe, Bergen township, Hudson county, was conveyed to the appellant, Herman M. Diamond, by deed of Anna B. Amoroso and husband, which was recorded on March 24, 1920. After acquiring the property, the appellant engaged Vincent Amoroso, Jr., to make some alterations and construct a new addition to the dwelling, and Amoroso sublet some of the work to De Riso Bros., Inc., but failed to pay the subcontractor the full amount due it under the subcontract. By reason thereof, a mechanic's lien suit was instituted in the District Court of the First judicial district of the county of Hudson, on August 23, 1920, against Vincent Amoroso, Jr., as builder, and Herman M. Diamond, as owner. On the same date, a lien claim and certificate of commencement of suit were filed in the county clerk's office, and subsequently stipulations were entered into between the lien claimant and the owner, whereby an appearance was entered on behalf of the owner, and the time for issuing summons was extended. It does not appear that service of process was ever had on the owner. Diamond. On January 6, 1921, the clerk of the District Court filed in the county clerk's office a certificate stating that on December 27, 1920, judgment was entered in the said District Court, for the sum of $500 debt, and $30.30 costs, in favor of De Riso Bros., Inc., and generally against the defendant Vincent Amoroso, Jr., and specially against the lands of Diamond, and, on the strength of said certificate, judgment was accordingly entered in the Hudson county circuit court on the date of filing said certificate, and execution on the judgment was issued out of said court, and on May 5, 1921, the sheriff sold the lands in question to James M. De Riso, in consideration of the sum of $625, and on June 21, 1921, De Riso and his wife conveyed the property to John J. McMahon, the respondent herein. Both deeds were recorded in the Hudson county register's office. On September 1, 1922, Diamond, the appellant, obtained a writ of certiorari to review the entire proeeedings had in respect to the mechanic's lien suit, including the sale made by the sheriff, Thereafter, on the 5th day of October, 1926, an order was entered dismissing the writ, for lack of prosecution. The appellant, in his argument, claims that service of the notice, of the motion to dismiss the writ, was illegal, but it does not appear that any attempt was ever made to have the case reinstated.

After McMahon had acquired title, proceedings were instituted by Margaret McMahon to foreclose a mortgage which was placed on the premises prior to the institution of the mechanic's lien suit. A writ of fieri facias was issued out of the Court of Chancery, directed to the sheriff of Hudson county, who sold the property, and afterward deposited with the clerk in chancery surplus moneys amounting to $10,039.33. Proceedings were then instituted by respondent to obtain the fund so deposited, and the matter was referred by the chancellor to a special master, for the purpose of ascertaining who was entitled to same. The appellant claimed the surplus money by virtue of the deed from Amoroso, and contended that the respondent, McMahon, had no interest in the fund, for the reason that the proceedings instituted in the District Court, to enforce the mechanic's lien, were not prosecuted in accordance with the statute, and, consequently, the judgment entered in the Circuit Court was a nullity, and therefore no title...