On appeal from the Supreme Court.
For the defendant-appellant, Elias D. Haut (Harry Weltchek, of counsel).
For the plaintiff-respondent, Green & Green.
The opinion of the court was delivered by
PERSKIE, J. This case comes up on appeal from a summary judgment entered by order dated December 24th, 1932, of the late Chief Justice Gummere, on striking out an answer on the ground that it was sham and frivolous and was filed merely for the purpose of delay.
The facts are not in dispute. The present suit is upon an insolvent debtor's bond, made by one Joseph Weltchek, and upon which bond the present defendant-appellant appeared as surety. The bond was entered into pursuant to section 2 of the Insolvent Debtors' act. 2 Comp. Stat., p. 2824. The bond among its several provisions provided as follows:
"Now, therefore, if the said Joseph Weltchek shall appear before the next Court of Common Pleas, to be holden in the county aforesaid, and petition said court for the benefit of the insolvent laws of the state, and shall in all other things comply with the requirements of the said insolvent laws, and shall appear in person, at every subsequent court, until he shall be duly discharged as an insolvent debtor; and if refused a discharge, surrender himself immediately thereafter to the sheriff or keeper of the jail in said county, there to remain until discharged by due course of law, then this obligation to be void; otherwise to remain in force."
The bond aforesaid was executed on May 12th, 1932, a date within the May term of the Court of Common Pleas of Union county. In July of that year, and therefore at a date still within the May term, the defendant in the original suit, Joseph Weltchek, appeared before the Court of Common Pleas of Union county and petitioned for a discharge. The hearing day on such petition was fixed by the court as September 8th, 1932, likewise still within the May term. On the debtor's failure to give certain notice, required by the statute, the matter was continued until November 25th, 1932, at
which time the proceedings for the discharge of the debtor were dismissed. Suit was thereupon brought against the defendant-appellant herein, the surety on the debtor's bond. The complaint filed in this suit, alleged several acts on the part of Joseph Weltchek, all of which it was claimed constituted distinct acts of non-compliance with the provisions of the Insolvent Debtors' act. Among such acts of non-compliance were the following:
"(a) He did fail to apply to the Court of Common Pleas of Union county on the opening day of the term thereof to appoint a day at which time the said court would attend to hear what can be alleged for or against liberation of the said insolvent debtor.
"(b) He did fail to have served on the plaintiff notice in writing of the time and place so appointed by the court.
"(c) He did fail to have the aforesaid notice inserted for four weeks, once in each week in one of the newspapers published in the county town of the county of Union.
"(d) He did fail on October 11th, 1932, to appear personally before the Court of Common Pleas of the county of Union held at the court house, Elizabeth, and petition the court for the benefit under the insolvent laws of this state, and as a result has not received his discharge.
"(e) He failed to surrender himself to the sheriff or keeper of the jail of the said Union county, in accordance with the conditions of the said bond, thereby breaching the same."
The answer denying these allegations was stricken by the late Chief Justice.
For the purpose of appeal we need consider only (a) and (d) of the acts, supra, which the plaintiff alleges constituted a non-compliance with the Insolvent Debtors' act. The May term of the court was followed by the October term and the opening day of the latter was October 11th, 1932. The apparent similarity of acts (a) and (d) supra, to the contrary notwithstanding, presents two questions: First, was the appearance by the debtor in the May term, the same term within ...