Rasner v. Carney

• Citation: 158 A. 321
• Decision Date: 23 January 1932
• Docket Number: No. 252.,252.
• Parties: RASNER et al. v. CARNEY, Judge, et al.
• Court: United States State Supreme Court (New Jersey)

158 A. 321

RASNER et al.

v. CARNEY, Judge, et al.

No. 252.

Supreme Court of New Jersey.

Jan. 23, 1932.

Certiorari to Second Judicial District Court, Hudson County.

Proceedings by Abraham Basner and another against Leo S. Carney, Judge of Second Judicial District Court of Hudson County, and another, for certiorari to review an order in an action by Goerke-Kirsch Company against Mamie Rasner and others. On rule to show cause.

Rule held valid in part, and set aside in part.

Argued May term, 1931, before GUMMERE, C. J., and PARKER and CASE, JJ.

Nathan Baker, of Hoboken, for prosecutors.

Harry Weltchek, of Elizabeth, for respondents.

GUMMERE, C. J.

In September, 1930, the Goerke-Kirsch Company recovered a judgment in replevin against Mamie Rasner and others in the district court of the Second judicial district of Hudson county. By that judgment the plaintiff was awarded possession of the goods and chattels set forth in the writ and state of demand, or, in the alternative, $350 damages. The plaintiff also was awarded $25 as costs. It elected to accept the award of damages instead of possession of the goods and chattels, and an execution was thereupon issued to one Philburn, a constable of the district court, directing a levy to be made by him upon the property of the defendants. The constable duly returned the writ, with a levy annexed, stating that, pursuant to the mandate thereof, he had levied on certain rents due to the defendant Mamie Rasner from tenants occupying premises of which she was the owner. The return contained a statement of the names of the various tenants from whom the attached rents were due, and was made on the 3d of February, 1931. On March 11th of that year an order was granted to the plaintiff directing the various tenants whose rents had been attached to show cause why these rents should not be turned over to the plaintiff or to the constable having the execution against the same, and a copy thereof was duly served upon each of the tenants. None of these tenants appeared at the hearing had on the return of the order of the district court, and, at its conclusion, the court entered an order absolute requiring the various tenants whose rents had been levied upon to turn over all of such rents to the constable holding the execution, so as to satisfy the judgment entered in favor of the plaintiff. One of the tenants, Abraham Agin, and Abraham Rasner, a brother of Mamie, who was present at the hearing, and who there claimed that he, and not his sister, was entitled to the rents, thereupon applied for and obtained the present writ of certiorari to test the validity of this order.

The first point made on the argument had before us on the return of the writ is that the order is illegal, for the reason that, at the time the rents were levied upon by the constable, the...