On appeal from the Supreme Court.
For the plaintiff-respondent, Harold F. Simandl.
For the defendant-appellant, Davies & Davies (Edward F. Merrey, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This appeal seeks to review a jury verdict returned in favor of the plaintiff-respondent. We desire, at the very outset, to point out that the state of case submitted does not contain the judgment complained of and to be considered by the court. All that appears is a mere statement at the end of the answer in the following form: "The jury returned a verdict for the plaintiff for forty-nine hundred dollars ($4,900)."
It is elementary learning that an appeal does not lie in any case until there is a final judgment. 2 Comp. Stat., p. 2207. Salmons v. Rugyeri, 103 N.J.L. 596; Van Hoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 189. Section 25, Practice act (1912), Pamph. L., p. 382. The state of case submitted should contain the judgment complained of and to be considered by the court. (Rule 19, Court of Errors and Appeals.) We could therefore with propriety stop at this point and dismiss the appeal. Mayer v. Roche, 73 A. 516.
But since counsel for both parties have fully prepared and submitted their respective points and arguments on the supposition that the verdict aforesaid was a final judgment, we have concluded, in order to avoid delay, to treat the supposition as a fact and finally dispose of this appeal on the merits.
The facts are as follows: On October 4th, 1925, defendant-appellant issued a certificate in the nature of a policy insuring plaintiff-respondent against loss by theft of his Stutz automobile. Plaintiff-respondent purchased the automobile on August 10th, 1925, and paid $4,500 for it. A part was paid in cash, part by accepting a Chandler automobile of the plaintiff-respondent in trade, and the balance of $2,250 plaintiff-respondent obligated himself to pay in twelve monthly notes of $211 each. Said notes were secured by a
conditional sales agreement and both were assigned to Auto Brokerage Company. Of all this the defendant-appellant had full knowledge.
The automobile was stolen on December 31st, 1925, while parked in front of the Hotel Riviera, Newark, New Jersey. The theft was reported to the police department and due notice given to the defendant-appellant company. Claim was made on the company, by proof of loss, to the amount of $3,600 and it refused payment. On March 24th, 1926, defendant-appellant company, in writing, repudiated the policy and denied all liability thereunder. Whereupon this suit was filed on June 24th, 1926. The court below limited or confined the entire issue to the question of the value of the automobile as of December 31st, 1925 (the day of the theft thereof), and told the jury that it could charge interest from the date of the denial by the defendant-appellant of its liability in the premises (March 24th, 1926). The jury returned a verdict of $3,500 as to the value of the automobile and $1,400 interest, in all, $4,900.
Ten grounds of appeal are assigned. Most of them, if not all, are bad in form and all are without merit or substance.
The first ground assigned is as follows:
"1. Because the court denied the motion of the defendant to dismiss the complaint on the ground that the Auto Brokerage Company was not made a party to the action."
At the very beginning of the trial, Mr. Davies, one of the counsel for the defendant-appellant, addressed the court in the manner following:
"If the court please, this policy is made out to the plaintiff and the Auto Brokerage Company, two assureds. The Auto Brokerage Company had an interest in the car and so did Mr. Kleinman. The Auto Brokerage Company has not been joined as a party plaintiff or as a party defendant. I think that before we are compelled to come here and defend the suit that should be done, I do not see how the jury can come in with any kind of a verdict if it should decide to hold the defendant, because the ...