La Rosa v. Rosa.

Decision Date18 February 1944
Citation36 A.2d 137
PartiesLA ROSA v. LA ROSA.
CourtNew Jersey Circuit Court

OPINION TEXT STARTS HERE

Action by Jack La Rosa against Charles H. La Rosa for money loaned. On defendant's motion to strike out the complaint as a sham and failing to state a cause of action.

Motion denied.

James M. Davis, Jr., of Camden, for plaintiff.

Cole & Cole and Maurice Y. Cole, all of Atlantic City, for defendant.

BURLING, Circuit Court Judge.

Motion has been made to strike out the complaint filed in the above-entitled cause of action on the ground that the said complaint is sham and fails to state a cause of action upon the following grounds:

1. Said complaint is sham in that the loans allegedly made by the plaintiff to the defendant, in the amounts and on the dates alleged in the First, Second and Third Counts of said complaint were the subject-matter of the litigation between the plaintiff and the defendant in a cause tried before the Atlantic County Court of Common Pleas on April 27, 1942, wherein Jack La Rosa was plaintiff and Charles H. La Rosa was defendant, which trial resulted in a verdict of no cause for action in favor of the defendant. The matters raised by the present complaint were found to be untrue by the jury in the foregoing cause and said matters are res judicata.

2. Said complaint fails to state a cause of action in that actions in debt, as alleged in said complaint are barred under and by virtue of the statute of limitations of the State of New Jersey, Revised Statutes 1937, Title 2:24-1 in that said action was not commenced within six years next after the cause of such action had occurred, as by the complaint on its face will appear.

These will be dealt with in the order of presentation.

The motion under reason No. 1 is grounded in the practice provided for by R.S. 2:27-125, N.J.S.A. and rule 85 of the Supreme Court, N.J.S.A. tit. 2, and accordingly the motion was supported by the affidavit of Charles H. La Rosa and Maurice Y. Cole, Esq., together with the records of the Atlantic County Court of Common Pleas in the matter of Jack La Rosa, plaintiff, vs. Charles H. La Rosa, defendant, and with a transcript of the proceedings at the trial thereof. The answering affidavit of the plaintiff was submitted on the argument of the motion.

In 34 C.J. page 1057, it is stated: (1493) b. Manner of Pleading-(1) In General. A plea of former recovery has sometimes been spoken of as a plea in abatement, but it is not a mere dilatory plea. While technically a plea of res judicata may be called a plea in abatement, practically speaking, it is a plea in bar, or a plea of estoppel by record. The defense of former adjudication may be raised by answer as well as by a formal plea.'

By the provisions of modern practice, resulting from the act of 1912, N.J.S.A. 2:27-1 et seq., and the rules of court promulgated pursuant thereto, pleas in abatement are abolished and in lieu thereof, objection shall be made on motion. Rule 56 Supreme Court, N.J.S.A. tit. 2; Commercal Credit Corp. v. Boyko, Err. & App. 1927, 103 N.J.L. 620, at page 625, 137 A. 534; Alexander v. Manza, Sup. 1943, 34 A.2d 11, 21 N.J.Misc. 295, at page 297.

No objection has been made as to the form of procedure in this matter, but the issue of a sham pleading has been accepted by the plaintiff, and will be accordingly disposed of.

A judgment recovered in a court of competent jurisdiction is res adjudicata as to a suit subsequently begun in another court involving the same facts and the rights and obligations of the respective parties resulting from those facts. Bergin v. Ganley, Err. & App. 1931, 107 N.J.L. 242, 154 A. 731.

But a matter is not res adjudicata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. To render a prior judgment res adjudicata the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one case would have the same effect in tending to maintain the other, Hoffmeier & Sons v. Trost, 83 N.J.L. 358, 85 A. 221; Mershon v. Williams, 63 N.J.L. 398, 44 A. 211; Smith v. Fischer Baking Co., Err. & App. 1929, 105 N.J.L. 567, at page 568, 147 A. 455.

In Meirick v. Wittemann-Lewis, etc., Co., Err. & App. 1923, 98 N.J.L. 531, 121 A. 670, 671, it was held:

‘This suit was brought, as disclosed by the pleadings, to recover on a quantum meruit for services rendered. The second defense interposed to the suit was, the plaintiff had been employed by the defendant, as secretary at a salary of $200 a week. That case was tried on the theory of a contract between the plaintiff and the defendant, At the trial the jury rendered a general verdict against the plaintiff and in favor of the defendant. This was the defense that was stricken out. * * *

‘The recognized rule applicable to the topic under discussion, supported by a long line of cases, is thus stated in 23 Cyc. 1158: ‘A proper test in determining whether a prior judgment between the same parties concerning the same matters is a bar to a subsequent action, is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first; if so, the prior judgment is a bar. But if the evidence in the second suit is sufficient to authorize a recovery, but could not have produced a different result in the first suit, the failure of the plaintiff in the first suit is no bar to his recovery in the other suit, although it is for the same cause of action’-cited, with approval in Hoffmeier v. Trost, 83 N.J.L. 358, 360, 85 A. 221; 15 R.C.L. par. 239, p. 784. It is quite apparent, tested by this rule, that the action of ...

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