Milberg v. Keuthe

• Decision Date: 18 June 1923
• Docket Number: No. 19.,19.
• Citation: 121 A. 713
• Parties: MILBERG v. KEUTHE.
• Court: New Jersey Supreme Court

121 A. 713

MILBERG

v. KEUTHE.

No. 19.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Joseph V. Milberg against Anna Keuthe, otherwise known as Anna Keuthe Walter. From a judgment for plaintiff, defendant appeals. Reversed.

Stover & Pellet, of Hoboken (O. J. Pellet, of Hoboken, on the brief), for appellant.

David H. Sterner, of Jersey City (Gross & Gross, of Jersey City, on the brief), for respondent.

TRENCHARD, J. This is the appeal of the defendant below from a summary judgment in favor of the plaintiff for possession of the premises in an ejectment suit in the Supreme Court, entered upon an order made by a Supreme Court Commissioner.

The record discloses that, after answer "filed" by the defendant, the plaintiff gave notice that he would move before "the Honorable William H. Spear, Circuit Court Judge, as Supreme Court Commissioner" to strike out the answer on the ground that the answer was sham and frivolous and disclosed no defense, and for summary judgment. On the hearing, an order was made by "William H. Spear, Supreme Court Commissioner," that the answer be vacated and that the "plaintiff do recover against the said defendant the possession of the premises mentioned and described in the said complaint with the appurtenances," and final judgment was accordingly so entered with costs. This appeal is from that order and judgment.

The appellant makes two points only: (1) That "a summary judgment in an action of ejectment is unauthorized;" (2) that "a Supreme Court Commissioner has no power to make an order for summary judgment in the Supreme Court."

We are of the opinion that the first point is ill founded in law. A summary judgment in an action of ejectment is authorized by sections 15 and 16 of the Practice Act of 1912 (P. L. p. 380) when the answer is frivolous or sham, and has been stricken out, leaving the plaintiff's claim wholly uncontested.

Section 15 declares that:

"Subject to rules, any frivolous or sham defense to the whole or to any part of the complaint may be struck out; or, if it appear probable that the defense is frivolous or sham, defendant may be allowed to defend on terms. Defendant, after final judgment may appeal from any order made against him under this section."

Section 16 reads:

"If the answer as filed, or after any part thereof shall be struck out, leaves a part of the plaintiff's claim uncontested, judgment interlocutory or final may be entered for such part as is not contested and the cause may proceed to trial as to the residue."

Supreme Court rules 80 to 84, inclusive (Ed. 1919), relating to the entry of summary judgments, and to which the foregoing sections are "subject," do not exclude ejectment suits from their operation.

The foregoing observations dispose of the narrow question raised and argued under this point.

It may, however, be worth while to point out that the terms "frivolous" and "sham" as used in section 15 do not mean precisely the same thing. A sham answer is one good on its face, but false in fact; a frivolous answer is one which on its face sets up no defense, although it may be true in fact. A frivolous answer is always assumed to be true, while a sham answer must be admittedly false or conclusively proved to be so; the character of the former is determined by mere inspection, while that of the latter is usually determined by proof aliunde. See In re Beam, 93 N. J. Eq. 593, 117 Atl. 613, and Fidelity Mutual Life Insurance Co. v. Wilkesbarre, etc., R. Co. (N. J. Err. & App.) 120 Atl. 734. But, of course, neither a sham answer nor a frivolous answer is a legal defense to an action, and sections 15 and 16 of the Practice Act of 1912 provide a summary method of striking out such an answer and for the entry of summary judgment.

But we think that the second point is well taken. A Supreme Court Commissioner has no power to make an order for summary judgment in an action in the Supreme Court.

Rule 84 of the Supreme Court declares that:

"No summary judgment shall be entered except by virtue of an order of the court or a justice at chambers, and the application for such judgment may be made on ex parte affidavits, and shall be made on four days notice, unless the court or the justice, for special reasons, shall order shorter notice."

Doubtless the learned and careful judge who, as Supreme Court Commissioner, dealt with this matter, considered that power to do so was conferred by virtue of his designation by the Supreme Court as Supreme Court Commissioner to hear and determine motions preliminary to trial. But that is not so. Such designation was made pursuant to section 17 of the Practice Act of 1912. P. L. p. 380. That section provides that:

"The court may, under such conditions as it may fix, require any or all motions preliminary to trial to be heard and determined by Supreme Court Commissioners designated by the court," etc.

Rules 92 to 96 inclusive "fix" the conditions.

Rules 94 and 95 define and outline the jurisdiction of the designated Supreme Court Commissioner.

Rule 94 provides that he may—

"make such order as the court might make and as may be just in respect to the following matters, subject to an appeal within five days to a judge of the court in which the action is pending: Objections to pleadings (other than those provided for in rules 40 and 56), amendments thereof, and leave for additional pleadings; settlement of issues; bi...