Wootton v. Pollock

Decision Date15 July 1938
PartiesWOOTTON et al. v. POLLOCK et al.
CourtNew Jersey Court of Chancery

Syllabus by the Court.

1. The remedy for mere error in a final decree or order, the result of mistaken judgment of the Court, is by appeal and not through petition for review.

2. That the Court may have, through mistake in judgment, entered an erroneous order, does not create a special equity in favor of an aggrieved litigant which will entitle him to a review of such an order after the time for appeal has expired.

Proceeding on the petition of Thomas B. Wootton and others against Louis R. Pollock and others to review an order of the court, 120 N.J.Eq. 245, 184 A. 611, in so far as that order denied revivor to the petitioners, on ground that there was a mistake of law on the part of the court in the making of such order.

Petition for review denied.

William Charlton, of Atlantic City, for complainants. William M. & Thomas R. Clevenger, of Atlantic City (C. L. Cole, of Atlantic City, of counsel), for William M. Clevenger,

SOOY, Vice Chancellor.

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Complainants, petitioners herein, seek to review an order of this court entered on May 26, 1936 on the ground that there was a "mistake of law upon the part of the court" in the making of such order so that "a special equity exists in their (complainants) favor whereby the order * * * should be opened, vacated and for nothing holden insofar as it (said order) denied a revivor to your petitioners (complainants) of a certain action then pending in this court."

Petitioners for a review of the order aforesaid and defendants agree that said order was final in its effect and that no appeal therefrom has ever been taken by petitioners and that the time within which an appeal could have been taken has long since expired. A recital of the events leading up to the entering of the order of May 26th aforesaid may serve to clarify the situation of all the parties with respect to the litigation leading up to the entry of said order and any "special equity" that may arise therefrom in petitioners' favor.

On August 11, 1933 petitioners' predecessor, administrators c. t. a. of the estate of Mary A. Wootton, deceased, filed a bill to foreclose a $75,000 mortgage made by Annie E. Wagner during her lifetime to Mary A. Wootton, since deceased, naming as defendants therein the executors, heirs, devisees and legatees of the said Wagner as parties defendant.

Upon motion, the bill of complaint was dismissed as to certain defendants under order of this court dated August 22, 1933, docket 97, page 504. Thereafter the foreclosure suit proceeded to final decree and the mortgaged premises were sold to complainant for a nominal bid. Some of the defendants asked that the fair value of the mortgaged premises be set off against the deficiency. The result was that through appropriate proceedings the fair value of the mortgaged premises was established and complainant petitioners herein agreed thereto, with the result that the deficiency was established as between the parties to the foreclosure litigation.

Subsequent to the above events, in June of 1934, complainants filed their bill to collect the deficiency and alleged that William R. Layton was obliged to pay the said deficiency because Annie E. Wagner was the obligor on the bond and William R. Layton, as devisee and legatee under the last will and testament of Annie E. Wagner, was liable for the obligation of the Wagner bond.

Subsequent to the filing of the bill mentioned in the preceding paragraph hereof, Layton died on January 23, 1936 and Robert M. Johnston, one of the administrators of Mary A. Wootton, also died. Layton died testate, making a money bequest to his wife and gave the remainder and residue of his estate to others and appointed William M. Clevenger as executor.

In November of 1935 complainants filed an amended bill which was identical with the first bill of complaint excepting that it added an additional cause of action thereto.

After the death of Layton and Johnston as aforesaid the petitioners herein filed a petition to have the suit to recover the deficiency revived and continued in the names of the surviving administrators c. t. a. of the Wootton estate as complainants and against the other defendants named in the bill of complaint, and particularly sought a revivor against the devisees of Layton, deceased, the devisees of Annie E. Wagner, deceased, and against William M. Clevenger, executor of Layton, and the legatees of the Wagner estate, as well as the legatees of the Layton estate.

The order of May 26, 1936, of which complaint is now made, was entered permitting the suit to stand revived against the defendants named therein in their capacity as devisees of Layton, deceased, as devisee of Annie E. Wagner, deceased.

The order to revive was denied as against William M. Clevenger, executor of Layton, deceased, and as against the legatees of Layton or Wagner.

The conclusions of the court under which the order of May 26th was entered are to be found in Wootton v. Pollock, 120 N.J.Eq. 245, 184 A. 611.

After the entry of the order aforesaid, to wit, in August of 1936, complainants, petitioners herein, filed a new bill of complaint entitled "Amended and Supplemental Bill of Complaint" and referred to herein as the 3rd bill of complaint.

This 3rd bill of complaint consisted of four counts or separate causes of action. In the first count recovery was sought against the real estate which was devised to Layton under the will of Annie E. Wagner. The second count sought recovery against Pollock. The third count was by one Kiess, administrator ad pros. of the estate of Wagner and was against Clevenger, executor of the estate of Layton, and Bachman, another legatee of Wagner, on the refunding bonds which these two parties filed as legatees in the Wagner estate. This was done notwithstanding the fact that the court, in the order of May 26th aforesaid, had expressly refused to revive as against the legatees of Wagner. The fourth cause of action was against Clevenger, executor of Layton, and Bachman as legatee of Wagner, and this notwithstanding that revivor had been denied against these legatees.

The defendants in the litigation aforesaid filed answers, with the exception of Bachman, who was not represented and against whom a decree pro confesso has been entered, reserving the right to move to strike the bill of complaint as against those named therein, against whom an order of revivor had been denied.

The litigation came on for final hearing, at which time the defendants aforesaid argued the motion to strike and at which time the testimony offered by each side was heard, the court reserving the questions raised under the motion to strike, as well as final determination on the merits. The hearing was held on April 30, 1937 and thereafter, to wit, on February 18, 1938, the petition herein was filed seeking to review the order of May 26th aforesaid.

Obviously the only subject of these conclusions will be as to whether or not the prayer of the petition for review should be granted.

In view of the decision by the Court of Errors and Appeals in the case of Carter v. Fidelity Union Trust Co., 120 N.J.Eq. 578, 187 A. 334, it appears that the order of this court, made on May 26th aforesaid, was contrary to the decisions of this court and if an appeal had been taken the order would have been reversed and accordingly, this court, following the decision of the Court of Errors and Appeals, must disapprove its opinion in Wootton v. Pollock, supra.

It is well settled that in order to justify an order for review the petition must allege and the proofs must sustain an allegation of newly discovered evidence, fraud or some special equity, unless error in law is apparent on the face of...

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7 cases
  • Doyle v. Chase Manhattan Bank
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 2, 1963
    ...29, 1958, was correctible only on appeal. Such an error is not a mistake for which a judgment will be opened. In Wootton v. Pollock, 124 N.J.Eq. 167, 200 A. 748 (Ch.1938), affirmed per curiam, 125 N.J.Eq. 432, 6 A.2d 216 (E. & A. 1939), petitioner sought review of a Chancery order denying r......
  • Hodgson v. Applegate
    • United States
    • United States State Supreme Court (New Jersey)
    • October 26, 1959
    ...may be impeached by bill of review must be more than the result of mistaken judgment.' See also Wootton v. Pollock, 124 N.J.Eq. 167, at pages 172--173, 200 A. 748, at pages 750--751 (Ch.1938), affirmed per curiam 125 N.J.Eq. 432, 6 A.2d 216 (E. & A.1939), wherein Hoffman v. Knox was cited w......
  • Strong v. Strong, 149/215.
    • United States
    • New Jersey Court of Chancery
    • April 24, 1945
    ...397, 6 Ann.Cas. 326; Miller v. McCutcheon, supra; Fidelity Union Trust Co. v. Petchesky, 119 N.J.Eq. 514, 183 A. 472; Wootton v. Pollock, 124 N.J.Eq. 167, 200 A. 748, affirmed 125 N.J.Eq. 432, 6 A.2d 216; In re Kuser's Estate, 132 N.J.Eq. 260, 26 A.2d 688. The grounds essential to support s......
  • Ackermann v. Loadsman, 124/168.
    • United States
    • New Jersey Court of Chancery
    • October 18, 1940
    ...his point. However, that opinion of the court was subsequently modified by Vice Chancellor Sooy on a rehearing and is reported in 124 N.J.Eq. 167, 200 A. 748. It was later affirmed on appeal and is reported in 125 N.J.Eq. 432, 6 A.2d The beneficiaries of the Kraus estate having received the......
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