Westcott v. Sharp
| Decision Date | 16 March 1888 |
| Court | New Jersey Supreme Court |
| Parties | WESTCOTT v. SHARP. |
(Syllabus by the Court.)
Certiorari to circuit court, Salem county; before Justice REED.
Attachment by Sarah S. Westcott against Alexander H. Sharp.
W. A. Logue, for plaintiff. A. Flanders, for defendant.
An attachment was issued out of the circuit court against the defendant, as a non-resident debtor, at the suit of the plaintiff. The auditor appointed by the court ascertained, by the testimony of witnesses examined before him, the sum due to the plaintiff, and to C. E. Mires, Jennie O. Dixon, and Eliza Wilson, applying creditors, and made his report in writing. To this report exceptions were filed, which were heard by the court, and overruled the report was confirmed, and judgment was ordered to be entered thereon. The objections to this judgment of the court are presented in behalf of Eliza Wilson, one of the applying creditors; and Emma E. Sharp, wife of the defendant, who claimed before the auditor, when he was examining the demands of the plaintiff and the applying creditors, that the debtor had a family residing in this state, and they were entitled to his statutory exemption for their benefit. The auditor refused to act upon the claim of exemption while the examination was pending, or to include it in his report. The court sustained him in this refusal.
Although the wife, as the head of the defendant's family, may, in case of his absence, claim the exemption, (Bonnel v. Dunn, 29 N. J. Law 435.) yet as the auditor at that stage of the proceedings was only ascertaining the claims of the plaintiff and other applying creditors, to report on them, the exemption demanded by the wife of the defendant could not be considered or allowed.
On behalf of Eliza Wilson, one of the applying creditors, several objections are made to the report, and the judgment of the court thereon: (1) That the affidavit on which the writ was issued is defective, and the court without jurisdiction. The answer made by the court below to this was that the objector being an applying creditor, and in the position of an actor or plaintiff in the cause, could make the objection. She submitted to the jurisdiction of the court by voluntarily making her claim under oath; by entering a rule in the minutes of the court admitting her as a creditor; and by presenting her demand to the auditor for adjudication. She cannot ask the benefit of the writ of attachment, and attack its validity. But her counsel argues that the court, and all parties to the proceedings, are interested in having the action brought strictly within the statute, otherwise the judgment will be void, and no one can take any benefit by it. There is clearly a defect in the affidavit, for it is made against a non-resident debtor, by the attorney of the plaintiff, when the statute says it must be made by the applicant for the attachment, or his agent, if said applicant be absent. It is not said in the affidavit that the attorney is the applicant's agent, or that she is absent. The former might be accepted as an equivalent, but the omission of stating the absence of the applicant is material. It appears also, by the proofs taken before the auditor, that when the affidavit was made the plaintiff resided and was present in Camden. On motion to quash the writ, this objection would be fatal; but, without some direct proceedings to annul it, the cause may proceed to judgment, the result being that it will be voidable, but not absolutely void. This was the judgment of the court in Mussel v. Work, 35 N. J. Law, 316, where there was an affidavit made by an attorney for a resident plaintiff, so appearing on the paper; and it was said that the justice's court, which is a court of record, acquired jurisdiction by the affidavit, so that its judgment, importing absolute verity, could not...
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