Peer v. Bloxham

• Decision Date: 20 November 1911
• Parties: PEER v. BLOXHAM et al.
• Court: New Jersey Supreme Court

81 A. 659

82 N.J.L. 288

PEER

v. BLOXHAM et al.

Supreme Court of New Jersey.

Nov. 20, 1911.

Action by Augustus L. Peer against Frank E. Bloxham and others. On rule to show cause why the proceeds of execution sale should not be paid to plaintiff in part satisfaction of his judgment. Motion to make rule absolute denied, and rule extended as stated.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Joshua R. Salmon, for the rule.

PARKER, J. The meritorious question involved in this application relates to the respective priorities of execution creditors as against a fund of money in court, realized by sale under one or more of the executions. But as a matter of practice we cannot examine into or decide this question for the reason that no evidence appears to have been taken under the rule to show cause from which the rights of the respective execution creditors to the fund or their priorities can be determined. The plaintiff claiming the prior right to the fund, relies entirely on the affidavit upon which the rule to show cause was allowed, and no depositions have been taken thereunder in support of the rule, although express provision was made therefor.

The present application is typical of numbers of similar ones that are constantly presented, and the frequency of such applications justifies a reiteration of the well-established rule that affidavits on which a rule to show cause is founded lose their efficacy as proof as soon as such rule to show cause is made, and that, after this, ex parte affidavits, whether made before or after the granting of the rule, are not competent to prove the facts necessary to support a motion not of course, or to be read on the hearing of a rule to show cause, depending on facts extrinsic to the record. Such facts can be brought before the court only by depositions taken on notice. Baldwin v. Flagg, 43 N. J. Law, 495, citing Galbraith v. Cooper, 24 N. J. Law, 219; State v. Gardner, 34 N. J. Law, 327, 329.

The practice of taking affidavits ex parte, to be used on the argument of a motion, is peculiar to the Court of Chancery. Baldwin v. Flagg, supra. A later case is Klein v. Adams Express Co., 61 N. J. Law, 530, 40 Atl. 445. The affidavits on which a rule to show cause is made must be filed as a basis for that rule upon entering the same. Galbraith v. Cooper, supra. Upon the granting of the rule and in support of it, the moving party must repeat his proof in the form of depositions taken on notice...