On appeal from the Middlesex County Circuit Court.
For the appellant, Abram Wolpin (Jacob H. Bernstein, of counsel).
For the respondent, Smith & Schwartz (Joseph B. Schwartz, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The appellant, Louis Csipo, Incorporated, appeals from an order made by the judge of the Middlesex County Circuit Court vacating a judgment which had been entered by default in its favor. The action involved a suit for a deficiency on a mortgage bond in the sum of $4,000. It appears that the suit was first started on June 27th, 1932, that being the teste date on the summons.
On June 29th, 1932, two days later than the date in the summons, the plaintiff filed a lis pendens and notice of intention
to sue for deficiency with the clerk of Middlesex county, and on July 28th, 1932, an amended lis pendens was filed. Now the sale of the property under foreclosure did not occur until June 29th, 1932, so that the suit on the bond was premature. The defendants filed an affidavit of merits and an answer. Plaintiff moved to strike out the answer which, on September 2d, 1932, was denied by the court. Leave was then sought to amend the date in the summons to read June 30th, 1932, instead of June 27th, 1932, and the motion to strike out the answer was renewed.
On September 30th, 1932, the court denied plaintiff's motion to amend the date in the summons, and again denied plaintiff's motion to strike out the answer whereupon, on October 7th, 1932, there was filed in the office of the clerk of the county a notice signed by plaintiff's attorney discontinuing the suit.
On October 3d, 1932, a new suit was started for this deficiency of $4,000; summons and complaint served October 6th, 1932, and filed October 13th, 1932. Now on the date that the discontinuance was received, namely, October 7th, 1932, the county clerk discharged the lis pendens which was recorded on June 29th, 1932, and also the lis pendens which was recorded on July 28th, 1932. No new lis pendens was filed prior to the second suit. The defendant filed no answer to this second suit and the plaintiff on October 17th, 1932, entered judgment by default.
Thereafter and on January 4th, 1933, the defendant, on petition to the Circuit Court, obtained a rule to show cause why the judgment should not be vacated and discharged of record. The court, after hearing the parties, signed an order reciting that the judgment had been improvidently entered and that it was null and void because no lis pendens was filed or recorded in the office of the clerk, prior to the beginning of the action nor at the time judgment was entered, and from this finding the appellant appeals on seven grounds only two of which are argued. We will consider the rest as having been abandoned. Sargeant Bros. v. Brancati, 107 N.J.L. 84.
The grounds argued are: First, that the judgment in question was properly entered in compliance with the statute and that the court erred in vacating same; secondly, the action of the ...