Stein v. Goodenough
| Decision Date | 19 November 1906 |
| Citation | 73 N.J.L. 812,64 A. 961 |
| Parties | STEIN v. GOODENOUGH. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Monmouth County.
Action by Herman Stein against Amelia Goodenough. Judgment for defendant, and plaintiff brings error. Affirmed.
This case was previously before this court (Stein v. Goodenough, 69 N. J. Law, 635, 56 Atl. 701), and argument was then stayed and the case retained in order that the actual entry of judgment final might be procured and the record thereof thus brought up by certiorari, which has been done.
Alan H. Strong, for plaintiff in error. Patterson & Rhoine, for defendant in error.
This was an action of replevin for the recovery of a wagon delivered to the plaintiff under the writ The defendant pleaded property in herself. The circuit court directed a nonsuit against the plaintiff for failure to bring on his case for trial pursuant to his own notice. A rule was entered in the minutes of the circuit court directing that "a judgment of nonsuit be entered in favor of the defendant against the plaintiff." Subsequently, upon a suggestion of property in the defendant, a writ of inquiry was awarded to the defendant to ascertain the value of the wagon and the damages, if any, suffered by the defendant by reason of its detention. Upon the return of the writ, judgment was rendered in favor of the defendant against the plaintiff for the amount thus ascertained.
The plaintiff in error insists that the judgment of nonsuit was erroneous because the record shows that, when the circuit judge ordered a nonsuit, the cause was not at issue, for want of the plaintiff's replication to the defendant's plea of property, although the plaintiff had noticed the case for trial. In the first place, considered merely as a question of practice, the contention of the plaintiff in error is well not founded. The iecord does not indicate that the plaintiff's attorney disclosed to the court the ground of objection now assigned as the error for which reversal is asked. The case was triable in the circuit court.
The rules of the Supreme Court, so far as applicable, unless otherwise directed by statute, are the rules of the circuit court. Rule 18 Circuit Court; Rule 89 Supreme Court. Vide Holler v. Ross, 67 N. J. Law, 60, 50 Atl. 342. Prior to 1900 the practice with respect to nonsuiting a plaintiff for failure to move a cause he had noticed for trial was not assimilable in the two courts. In the circuit court such motion was made when the cause was reached on the call and granted or refused by the circuit judge on the grounds then before him. In the Supreme Court no such practice was followed at the circuit nisi prius; the defendant being put to the necessity of a practice motion before the branch court at the ensuing term. In 1900 the Supreme Court adopted in effect the circuit court practice, declaring, by rule 42, that in such a case the justice of that circuit "may consider the reasons, if any, alleged by the plaintiff for such failure; and if no reason be alleged, or those alleged be insufficient to excuse the default, such justice may order that the plaintiff be nonsuited and on the filing of his order a judgment of nonsuit shall be entered." This rule, being applicable to the circuit court, became its rule. The case at bar, although an action for replevin, was subject to the rule.
The somewhat academic distinction (Supreme Court, 1841) between replevin and other actions, that "in replevin the court will not rule the plaintiff to carry down the cause for trial or be non prossed" (Ames v. Broderick, 18 N. J. Law, 297; Smethurst v. Harwood, 30 N. J. Law, 230), never had application where the plaintiff had given notice of trial (Bul. N. P. 61). However, the doctrine of the Broderick Case no longer prevails. The statutory provisions respect ing replevin actions now regulate the practice. Revision, p. 2773, § 17. Under our present procedure actions of replevin present no exception to the general rule, and both the practice act, Laws 1903, p. 578, c. 247 (vide section 149), and the rules of the Supreme Court (vide rule 42) apply to and regulate actions for replevin. It follows that, when the plaintiff's attorney failed to move the cause he had noticed, he knew that his day in court to disclose his reason for his failure was fixed by that rule at the day and date when he failed to move for trial the cause he had...
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