S. Broad Bldg. & Loan Ass'n v. Brunetto

• Decision Date: 05 January 1934
• Docket Number: No. 118.,118.
• Citation: 169 A. 870
• Parties: SOUTH BROAD BUILDING & LOAN ASS'N v. BRUNETTO et ux.
• Court: New Jersey Supreme Court

169 A. 870

SOUTH BROAD BUILDING & LOAN ASS'N

v. BRUNETTO et ux.

No. 118.

Court of Errors and Appeals of New Jersey.

Jan. 5, 1934.

Syllabus by the Court.

The Act of 1907, p. 563 (3 Comp. St. 1910, p. 3423, § 51 et seq.) requiring the filing of a notice of lis pendens as a preliminary to a suit for deficiency after foreclosure, and providing that no judgment shall be entered unless such notice has been filed before beginning suit relates merely to procedure, and does not require a plaintiff in such suit to aver in the complaint the filing of such notice. The omission to file it is a defense.

Appeal from Supreme Court.

Suit by the South Broad Building & Loan Association against Thomas Brunetto and wife. An order striking out the complaint as setting up no cause of action was affirmed (167 A. 161, 11 N. J. Misc. 520), and plaintiff appeals.

Judgment reversed, with directions.

Voight & Otto, of Newark, for appellant.

PARKER, Justice.

As will be seen in the per curiam filed in the Supreme Court, the suit was for deficiency arising on a foreclosure sale; the circuit court struck out the complaint because it did not aver that a notice of the action had been filed previously to the issue of summons. P. L. 1907, p. 563, reprinted in 3 Comp. St. 1910, p. 3423, § 51 et seq.; see Mutual Savings Fund Harmonia v. Gunne, 110 N. J. Law, 41, 164 A. 43. Plaintiff claimed that such notice had in fact been filed, and asked leave to amend by adding an averment of the filing, which the court refused, as the statute of limitations had then run. The Supreme Court sustained the circuit court in both aspects, relying on Shack v. Dickenhorst, 99 N. J. Law, 120, 122 A. 436; State v. Jersey City, 94 N. J. Law, 431, 111 A. 544, 19 A. L. R. 646, and Fletcher v. Board, 85 N. J. Law, 1, 88 A. 834.

It is elementary, of course, that a complaint must state a legal cause of action: and when that cause of action is created by, or arises out of, a statute, compliance with the conditions which the statute says will give rise to such cause of action should properly be averred in the complaint. Thus, in Shack v. Dickenhorst, there was an attempt to recover back money deposited on a wager. The statute created the right of action and limited it as to time; and this court held, in analogy to cases arising under the Death Act (2 Comp. St. 1910, pp. 1907, 1911, §§ 7, 9, and Comp. St Supp. §§ 55—8, 55—10), that the conditions under which the right of action existed and persisted must be met by suitable averments in the complaint. See, also, Sawin v. Eisele, 99 N. J. Law, 117, 122 A. 437. So, in State v. Jersey City, supra, the question was simply one of pleading a conclusion of law; and in Fletcher v. Board, one of failure to show power in a municipal corporation to make the contract involved in the case. But the cause of action now before us is not one created by any statute. It is a suit on a bond for payment of money. At common law it could be pursued simultaneously with a foreclosure of the mortgage. Baldwin v. Flagg, 43 N. J. Law, 495. The statutes of 1880 and 1881 (3 Comp. St. 1910, p. 3420 et seq., § 47 et seq.), so far from creating any right of action, limited the common-law rights as to subsequent bonds accompanied by mortgages, and in 1907 came the supplement (3 Comp. St. 1910, p. 3423, § 51), providing that "no judgment shall be entered" unless prior to beginning the suit a notice is filed, stating certain particulars.

Now if this statute were a curtailment of the right of action, it would likewise be unconstitutional as to obligations created before its enactment; but this court, in Pennsylvania Co. v. Marcus, 89 N. J. Law, 633, 99 A. 405, held it not...