State Mut. Bldg. & Loan Ass'n of N.J. v. Batterson

• Citation: 71 A. 115,77 N.J.L. 57
• Parties: STATE MUT. BUILDING & LOAN ASS'N OF NEW JERSEY v. BATTERSON.
• Decision Date: 09 November 1908
• Court: United States State Supreme Court (New Jersey)

71 A. 115

77 N.J.L. 57

STATE MUT. BUILDING & LOAN ASS'N OF NEW JERSEY

v. BATTERSON.

Supreme Court of New Jersey.

Nov. 9, 1908.

(Syllabus by the Court.)

Motion by James G. Batterson to open a judgment entered against him by the State Mutual Building & Loan Association of New Jersey upon a bond and warrant of attorney. Motion denied.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Francis Scott, for the rule.

Harvey F. Carr, opposed.

SWAYZE, J. This is a motion to open a judgment entered upon a bond and warrant of attorney. The bond was secured by a mortgage, which was foreclosed. The case is reported in 67 N. J. Eq. 595, 59 Atl. 469. It was there held that the mortgage did not secure the premiums, fines, and charges, for the payment of which, together with the principal and interest, the bond was conditioned. In every other respect the decree in favor of the complainant in the foreclosure suit was sustained. Judgment was then entered upon the bond, by virtue of the warrant of attorney, for the penalty of the bond; and it is this judgment which the defendant now seeks to set aside. This method of entering the judgment has been already sustained by this court. Earl v. Jenkins, 42 N. J. Law, 416, 58 Atl. 1086. It is urged, however, that the bond in the present case is not such a bond as is contemplated by the act directing the mode of entering judgment on bonds with warrants of attorney to confess judgments (Gen. St. 1905, p. 172), for the reason that section 5 limits the right of the obligee to apply for the entry of judgment pursuant to the warrant, to a time after the day of payment mentioned in the bond. The bond in this case provides for the payment of the moneys secured, at such time, in such places, and in such installments as now are, or may hereafter be, required by the Constitution, by-laws, and regulations of the obligee. It contains also a special provision that, if default is made in the payment of interest and principal, premiums, fines, charges, or tax, for the space of 30 days after the same shall first become payable then the whole principal debt shall, at the option of the obligee, become due and payable immediately; and payment of said principal debt, and all interest thereon, may be enforced, and recovered at once, anything contained in the bond to the contrary notwithstanding. It is not denied that there had been default, and that the 30 days had elapsed, so that the whole amount became due at the option of...