Penrose v. Absecon Land Co.

• Decision Date: 05 March 1923
• Docket Number: No. 1.,1.
• Citation: 120 A. 207
• Parties: PENROSE v. ABSECON LAND CO. et al.
• Court: New Jersey Supreme Court

120 A. 207

PENROSE

v. ABSECON LAND CO. et al.

No. 1.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Charles B. Penrose against the Absecon Land Company and others. From a decree for plaintiff (118 AtL 698), defendants appeal. Reversed and remanded, with directions.

Robert H. McCarter, of Newark, for appellant Selina A. Charlton.

Clarence L. Cole, of Atlantic City, for respondent.

PARKER, J. This is an appeal from a final decree of the Court of Chancery in a suit to quiet title under the statute (C. S. p. 5399 et seq.), based on a previous decree in the cause which directed the answers filed by the defendants to be struck out, and that the bill be taken as confessed. The grounds for that decree, as recited therein, are that the title involved was settled adversely to the defendants' claim in two cases in the Supreme Court, and also in a former case in the Court of Chancery (both identified by name), and that the matter was consequently res adjudicata. So far as appears by the record before us, although all the defendants joined in the notice and petition of appeal, Selina A. Charlton is the only appellant urging it to a hearing, so there should be an affirmance by default as to the other defendants.

The first point argued by counsel is that the action of the Court of Chancery in striking out the answers was not authorized by the statute or the ordinary practice of the court. The procedure followed was this: Complainant gave notice of motion to strike out the answers, specifying the point of res judicata and that the files of the prior cases already mentioned would be used on the argument. These files appear to have been marked as exhibits and argument to have been had thereon before the chancellor in person, whereupon the answers were struck out, as stated.

As to the propriety of the practice followed, we need search for authority no farther than section 4 of the Chancery Act of 1915 (P. L. 1915, pp. 184, 185). That section provides that—

"Any frivolous or sham defense may be struck out on notice, and a decree pro confesso entered, or the defendant may be allowed to defend on terms, or such other order or decree may be made in the premises as may be just."

It is suggested that there is no provision for the taking of evidence under this section, but the necessary implication of the statute is that evidence shall be taken; for the very word "sham" connotes unfounded allegations of fact, and the universal practice is to deal with sham pleadings in a summary way by affidavits or documentary evidence and without waiting for the formality of a trial. The evident intent of the statute was to assimilate the equity practice in this respect to that at common law. And the general Chancery Act of 1902 (P. L. p. 545, C. S. p. 410), to which the act of 1915 is a supplement, applies to the statute relating to quieting of titles, under which this suit was brought. Realty Co. of N. J. v. Burghardt, 91 N. J. Eq. 120, 111 Atl. 275. The practice followed below was therefore legally correct.

This brings us to the question whether the decree was justified on the merits, and we conclude that it was not. As to the matter sub judice being res judicata by virtue of the judgments in the Supreme Court, the adequate answer is that both records show a nonsuit, and therefore conclude nobody. Beckett v. Stone, 60 N. J. Law, 23, 36 Atl. 880; Longstreet v. Phile, 39 N. J. Law, 63; Snowhill v. Hillyer, 9 N. J. Law, 38. And with respect to the former decree in chancery, we think it fails to meet the tests of res judicata. Mrs. Charlton was not a party to that litigation. Her predecessors in title were, but this alone is not enough; for the prior adjudication, in order to be binding, must have affected...