Miller v. Stieglitz
| Decision Date | 03 November 1933 |
| Citation | 168 A. 839 |
| Parties | MILLER v. STIEGLITZ et al. (two cases). |
| Court | New Jersey Supreme Court |
Suits by Julia B. L. Miller, administratrix, etc., of Herman Miller, deceased, and substituted as plaintiff for Herman Miller, and by Julia B. L. Miller, against Albert Stieglitz and others. Judgment for defendants in first case. On plaintiff's motion to file amended postea and amend judgment accordingly, and on defendants' motion to stay the second suit as involving the same parties and issues as the first suit, and also for nonpayment of costs awarded to defendant therein.
Plaintiff's motion sustained, and defendants' motion denied.
See, also, 109 N. J. Law, 138, 160 A. 543.
Before Justice PARKER, at Chambers.
Samuel Press, of Newark, for plaintiff.
Nathaniel Weltchek, of Elizabeth, for defendants.
The cross-motions are presented for decision without any submission of the pleadings or statement of the subject-matter of either suit. What appears is that Miller began the first-entitled suit and died while it was pending, and thereupon Julia Miller, administratrix, was substituted as plaintiff pursuant to the abatement act. The case went to trial, the jury found for defendants, and the trial judge signed a postea accordingly, containing the clause "with costs of suit to be taxed in favor of the defendants." On this postea judgment was entered and costs were taxed and I presume served. Thereupon plaintiff's attorney moved on notice to amend the postea, and the judge signed another postea making no mention of costs; but the clerk refused to alter the judgment without a rule of the court. This is the first motion before me. The counter motion is in the second suit, begun by Mrs. Miller in her own right, and is directed to a stay in that suit, first on the theory of res judicata, and secondly for nonpayment of the costs in the first action.
The counter motion may be readily disposed of. As has been said, there is nothing before me to show the subject-matter of either action, and nominally the plaintiff is not the same in both. No case is presented for a stay on that ground. As to nonpayment of the costs, and assuming they were properly awarded, of which more presently, title point is immaterial, because in the first case there was no nonsuit but a final judgment for defendants. If the issues and parties are the same in both, the second suit is barred, and the question of stay is superfluous. If they are not the same, nonpayment of costs in the first will not stay the second. Defendants' motion is denied.
As to the costs, I am satisfied that plaintiff is not...
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Miller v. Stieglitz
...Halle & Stieglitz. From a judgment on a directed verdict, plaintiff appeals. Reversed. See, also, 109 N. J. Law, 138, 160 A. 543; 168 A. 839, 11 N. J. Misc. 927. Samuel Press, of Newark, for Nathaniel Weltchek, of Elizabeth, for respondents. HEHER, Justice. Plaintiff sued to recover the sum......
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La Rosa v. Rosa.
...If the issues are not the same, the nonpayment of costs in the first will not stay the second action. Miller v. Stieglitz, Sup. 1933, 168 A. 839, 11 N.J.Misc. 927, 928. The issues are not the same and the motion upon this ground will be denied. In support of the motion the defendant has adv......
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Loftus v. Pub. Serv. Interstate Transp. Co.
...above applies in cases where the deceased had begun the action and had died pendente lite, as in the present case. Miller v. Stieglitz, 168 A. 839, 11 N.J.Misc. 927. However, in suits commenced in this state by a foreign executor or administrator, R.S. 3:13-7, N.J.S.A., provides: ‘Any execu......