P. H. Laufman & Co., Ltd. v. Hope Mandf'g Co.

• Decision Date: 22 January 1892
• Citation: 54 N.J.L 70,23 A. 305
• Parties: P. H. LAUFMAN & CO., Limited v. HOPE MANDF'G CO.
• Court: New Jersey Supreme Court

23 A. 305

54 N.J.L 70

P. H. LAUFMAN & CO., Limited

v. HOPE MANDF'G CO.

Supreme Court of New Jersey.

Jan. 22, 1892.

(Syllabus by the Court.)

Action by P. H. Laufman & Co., Limited, against the Hope Manufacturing Company on a contract. Judgment for plaintiff. Defendant moves to open the judgment. Motion granted.

The other facts fully appear in the following statement by Dixon, J.:

Defendant is a New Jersey corporation. Summons for $3,000, tested April 22, 1891, returnable April 30, 1891. Declaration, including bill of particulars and statement of amount claimed, was attached, and a notice to defendant indorsed that an affidavit of merits was required to be filed within 10 days after service upon it, and a plea in 30 days after such service, in case defendant intended to make a defense. Copy of summons, declaration, and notice was served by the sheriff of Gloucester county on the secretary of the defendant company by delivering them to him personally, April 22, 1891. Affidavit of such service is indorsed on papers on file. No affidavit of merits was filed by defendant within 10 days after such service. On May 4, 1891, judgment by default was entered against defendant for amount claimed by plaintiff, with costs. An affidavit of the facts was filed, and a rule to show cause why the judgment should not be opened was allowed defendant. Justice Reed, after the hearing, turned it into a rule to show cause returnable before the supreme court forthwith.

Argued June term, 1891, before Depue, Reed, and Dixon, JJ.

Learning Matlock, for plaintiff.

Thomas E. French, for defendant.

DIXON, J., (after stating the facts.) The first question in the case is whether, under the supplement to the practice act approved May 3, 1889, (P. L. 1889, p. 334,) an affidavit of merits is required from the defendant, to prevent the entry of judgment at the expiration of 10 days after service of the declaration and notice to file such affidavit, in cases where the declaration and notice are served at the time of the service of the summons. Clearly, the first section of the supplement requires such affidavit only when the declaration and notice are served "after the defendant is in court;" but, as clearly, the third section provides for service of the declaration, with the notice indorsed, at the time of the service of the summons; and the design of this provision must have been to exact in such cases also the affidavit of merits, which is the only new feature brought by the...