Thatcher v. Hackett
| Decision Date | 14 September 1938 |
| Citation | 1 A.2d 438 |
| Parties | THATCHER et al. v. HACKETT. |
| Court | New Jersey Supreme Court |
Bastardy proceeding by P. R. Thatcher, director of welfare of the county of Warren, and Mary G. Bailey, against Leon W. Hackett. From a finding of the magistrate sitting with a jury, an appeal was purported to be taken by the plaintiffs. The defendant moved to set aside the appearance entered by the director of welfare, and to dismiss the appeal on the ground that it was made by an attorney acting without authority, and the director of welfare joined in the motion, and the defendant moved to dismiss the appeal because the record was barren of a finding by jury or an order of discharge by the magistrate or a final judgment below.
Appeals dismissed without costs.
Robert B. Meyner, of Phillipsburg, for appellants.
Saul N. Schechter, of Belvidere, for appellee.
ROSECRANS, Common Pleas Judge.
This is an appeal purporting to have been taken by the Director of Welfare from the finding of a magistrate sitting with a jury in a bastardy case under the statute, Rev.Stat.1937, 9:17-1, etc. The defendant moves (1) to set aside the appearance entered by the Director of Welfare and dismiss the appeal on the ground that it was made by an attorney acting without authority and in this motion he is joined by the Director of Welfare; and (2) to dismiss the appeal because the record is barren of any finding by the jury, any order of discharge by the magistrate or any final judgment below.
The Director of Welfare was sworn and cross-examined and other oral testimony was taken in open court without objection in support of the first motion. In passing it may be observed that such motion is in the nature of a plea and when a motion must be supported by facts extrinsic the record the established practice at law is to take depositions in response to a rule—in Chancery by ex parte affidavits. Baldwin v. Flagg, 43 N. J.L. 495. The court may, however, direct otherwise.
There are two notices of appeal, one by the Director of Welfare and the other by Mary G. Bailey. Appearances for both were entered by the same attorney. The Director of Welfare testified that he did not authorize this attorney nor anyone else to take the appeal for him; that the attorney neither represented him nor the mother before the magistrate and that he never determined that the municipality was aggrieved by the decision below; that by reason of the evidence before the magistrate his opinion was changed as to the likelihood of the child becoming a public charge. He stated that he never ratified the act of the attorney in taking the appeal for him and objected when he learned of the fact. His legal representative was and is the County Counsel. The appellant's attorney testified that he filed the notice of appeal in the name of the Director of Welfare prior to receiving authority from him but that in a subsequent telephone conversation with the officer his act was ratified.
Under the Bastardy Act the proceedings are civil in nature (Overseers of Poor of Town of Mbntclair v. Eason, 92 N., J.L. 199, 104 A. 291, 1 A.L.R. 631) although strangely the statutory...
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State v. Sax, 34891
...title 9, c. 17, and Only the defendant and the municipality are authorized to appeal. Art. 4, § 9:17--20. Hence, Thatcher v. Hackett, 1 A.2d 438, 16 N.J.Misc. 459, and Nutt v. Arbitelli, 131 A. 64, 3 N.J.Misc. 1194, cited in the dissent, are not helpful, since the mother in this state may i......
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State (F) v. M.
...more than the quoted statement. In the city's brief the proceedings are spoken of as 'essentially civil.' In Thatcher v. Hackett, 1 A.2d 438, 16 N.J.Misc. 459 (Cty.Ct. 1938), the court considers the element of conflict between the legislative grant of appellate jurisdiction to the Quarter S......
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G. v. C.
...most purposes); Montclair Overseer of Poor v. Eason, 92 N.J.L. 199, 202-203, 104 A. 291 (E. & A.1918) (civil); Thatcher v. Hackett, 16 N.J.Misc. 459, 1 A.2d 438 (Ct.Qtr.Sess.1938). We therefore conclude that the rule was intended to conform with the statutory grant of a right to trial by ju......
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State ex rel. Acorman v. Pitner
...nothing more than the quoted statement. In the city's brief the proceedings are spoken of as 'essentially civil.' In Thatcher v. Hackett, 1 A.2d 438, 16 N.J.Misc. 459, the court considers the element of conflict between the legislative grant of appellate jurisdiction to the Quarter Sessions......