Sheppard v. Philadelphia Record Co.

• Citation: 49 A.2d 33
• Parties: SHEPPARD v. PHILADELPHIA RECORD CO.
• Decision Date: 24 September 1946
• Court: New Jersey Circuit Court

49 A.2d 33

SHEPPARD

v.PHILADELPHIA RECORD CO.

Circuit Court of New Jersey, Cumberland County.

Sept. 24, 1946.

Action by Irene B. Sheppard against Philadelphia Record Company. On application to quash writ of attachment.

Writ vacated.

Stanger & Howell, of Bridgeton, for plaintiff.

Boyle, Archer & Greiner, of Camden, for defendant.

EASTWOOD, Judge.

Application has been made to me by the defendant corporation in the above matter to quash the writ of attachment issued out of the Cumberland County Circuit Court on March 7, 1946, on the ground that the writ in question was improperly executed by the Sheriff of Cumberland County and having been so defectively executed that the writ has no legal vitality. In opposition to the defendant's motion, it is maintained by the plaintiff that the writ was properly executed by the Sheriff or that in the event the writ was not properly executed then this Court may exercise its power of amendment to cure such alleged defective execution. It is also contended by the plaintiff that the defendant has, by its actions, taken such steps in the cause as constitute a general appearance, and that, therefore, the defendant has admitted the jurisdiction of the Court and the defendant is thereby estopped to question the effectiveness of the method by which it was brought into Court.

It appears that the writ, sub judice, was issued in accordance with the provisions of R.S. 2:42-72 et seq., N.J.S.A., P.L.1903, Chapter 247, as amended by P. L. 1907, Chapter 114, commonly known as the Practice Act of 1903. Parenthetically, it may be observed that attachment proceedings under the Practice Act of 1903 are comparatively rare, the more popular procedure and that generally followed being proceedings under the Attachment Act of 1901. P.L.1901, Chapter 74. R.S. 2:42-1 et seq., N.J.S.A. However, it is provided in R.S. 2:42-76, N.J.S.A., that the issuance of writs of attachment, and the practice and procedure relating thereto under the Practice Act of 1903, shall be the same as in cases of attachment under the Attachment Act of 1901.

As to the salient facts before me it may be briefly stated that they are as follows: On March 7, 1946, the writ of attachment in question was issued out of the Cumberland County Circuit Court in the amount of $1500 on the order of a Supreme Court Commissioner, who awarded the writ in the sum of $1500 against the rights and credits, moneys and effects, goods and chattels and real estate belonging to the defendant in this State. Pursuant to the order and the writ the Sheriff of Cumberland County, together with one Samuel E. Brown, a Freeholder of said County, went to the premises of one Earl Hummel, Sr., trading as South Jersey News Agency, Bridgeton, New Jersey, to the premises of one George Bozarth, Millville, New Jersey, and to the premises of one Louis N. Steiner, Vineland, New Jersey, all of whom were news dealers and then and there declared that he, the Sheriff, attached moneys in the hands of the said news dealers due and owing to the defendant, Philadelphia Record Company. The Sheriff then proceeded to make an inventory and appraisement in the presence of the said Samuel E. Brown, which inventory was set forth in the following words ‘Money in the hands of (the named news dealers) due and owing to Philadelphia Record Company, a corporation.’ Under the word appraisement appears the word ‘Unknown.’ The Sheriff left a copy of the writ with each of the news dealers and returned the writ into Court on March 14, 1946. The plaintiff filed her complaint on April 1, 1946, together with a rule to plead. The defendant then served notice of this application, service of which was acknowledged by plaintiff's attorneys on April 25, 1946, and which motion was argued before me orally at Chambers in Bridgeton. Because of the novelty of the question presented for adjudication I have requested written memoranda to be filed, which has been done, the benefit of which I have had and which have been of very material assistance in aiding the...