Rollenhagen v. Stevenson

• Decision Date: 03 July 1945
• Citation: 43 A.2d 173,23 N.J.Misc. 219
• Court: New Jersey Supreme Court
• Parties: FREDERICK M. ROLLENHAGEN, PLAINTIFF, v. HARRY S. STEVENSON, DEFENDANT

43 A.2d 173

ROLLENHAGEN

v.STEVENSON.

Supreme Court of New Jersey.

July 3, 1945.

Action by Frederick M. Rollenhagen against Harry S. Stevenson on a foreign judgment.On plaintiff's motion to strike answer and for summary judgment.

Motion to strike granted in part, and denied in part.

Syllabus by the Court.

1.In a suit on a judgment, entered of record in a court of a sister state on defendant's agreement and confession of judgment, the defendant may plead the invalidity of such judgment upon the ground that the court of the sister state lacked jurisdiction over the subject matter by reason of the plaintiff's failure to conform strictly to the authority given by the statutes of that state for the entry of such a judgment.

2.In a suit on a judgment, entered of record in a court of a sister state on defendant's agreement and confession of judgment, the defendant may plead the non-existence of the judgment record in the court of the sister state.

3.In a suit on a judgment, entered of record in a court of a sister state, the facts relied upon to avoid such judgment, such as the lack of jurisdiction of the court of the sister state over the subject matter, or the non-existence of the judgment record, must be specially pleaded and may not be given in evidence under the general issue.

4.In a suit on a judgment, where the complaint contains the allegation that the judgment creditor assigned and transferred all its right, title and interest in and to said judgment to the present plaintiff for a legal and valuable consideration, the non-existence, invalidity, illegality and failure of consideration for such assignment need not be specially pleaded.The general denial contained in the answer squarely places the burden upon the plaintiff to prove a valid and legal assignment of such judgment.

Drewen & Nugent, of Jersey City, for plaintiff.

Frank C. Scerbo, of Morristown, for defendant.

LEYDEN, Supreme Court Commissioner.

Plaintiff moves to strike the answer of the defendant to the complaint on an alleged judgment obtained against the defendant on his agreement and confession of judgment in the state of New York, and entered on or about the 15th day of September 1926 in the Supreme Court, New York County.The companion application for summary judgment was properly abandoned for lack of authority of the Supreme Court Commissioner to enter a judgment in a Supreme Court issue.Milberg v. Keuthe, 98 N.J.L. 779, 121 A. 713.

The complaint is in the usual form and contains, by incorporation and reference, what purports to be an exemplified copy of the judgment record of the New York court, with the defendant's statement and confession of such judgment dated September 1st, 1925, annexed thereto.

The answer contains a general denial and five separate defenses.Considering the defenses seriatim, we have the first, which is attacked as insufficient in law and sham.It sets up that the alleged judgment sued upon is void for lack of jurisdiction of the court in which it was entered by reason of the nonresidence of the defendant in New York County on September 1st, 1925, the time of the making of the statement and confession of judgment.It appears from the motion papers that the defendant was not a resident of New York County at the time mentioned, and that such residence is a prerequisite to the entry of a valid judgment on confession under the law of the State of New York.New York Civil Practice Act, § 543;Williams v. Mittlemann, 259 App.Div. 697, 20 N.Y.S.2d 690.

This defense is sufficient in law.A defendant may impeach a judgment of a sister state upon the ground that the court of the...