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Rust v. Concord Casualty and Surety Co.

Decided: January 5, 1934.

ALFRED H. RUST, SURVIVING PARTNER, ETC., APPELLANT,
v.
CONCORD CASUALTY AND SURETY COMPANY AND MAX PASCHER, RESPONDENTS



On appeal from the Supreme Court.

For the appellant, Harold Farkas.

For the respondent Pascher, Hirschberg & Naschel.

For the respondent surety company, Solomon & Solomon.

Parker

The opinion of the court was delivered by

PARKER, J. This is an appeal from a judgment for defendants, principal and surety, entered pursuant to an order by a Circuit Court judge sitting as a specially designated Supreme Court commissioner, which directed that the complaint be struck out and that judgment final be entered in favor of defendants and against the plaintiff, with costs, however, to the plaintiff. The award of costs is not in question on this appeal.

The suit is on a recognizance of bail in a civil action. The complaint averred a breach of the condition of the recognizance in that after recovery by plaintiff of a judgment, defendant Pascher neither paid the judgment nor surrendered to the sheriff; that a capias ad satisfaciendum was issued and returned non est inventus; that neither the surety nor the defendant paid, nor did the surety render the defendant into custody.

The action is brought pursuant to section 79 of the Practice act of 1903. Comp. Stat., p. 4075. Section 77 provides that (even after suit begun) "the defendant may on notice to the plaintiff render himself or be rendered in discharge of his bail * * * to the court * * * or to a judge; provided, such render be made within twenty days after the return of the * * * process in an action on the recognizance

of bail and not after, unless for good cause further time be granted by the court or a judge. * * *." The abolition of a return day of the summons by the passage of the Practice act of 1912 and rules thereunder, was considered by the writer in Van Nest v. Nauman, unofficially reported in 9 N.J. Mis. R. 570, 1038, but its effect was not determined, and it is not in question here, as the alleged or attempted render was in fact within twenty days after the teste of the summons; and on that the defendants' case stands or falls. If the render was lawfully made, it was in time; if not lawfully made, it was no render at all, and the matter of time was immaterial.

We are clear that no lawful render was made, and that the attempted render was nugatory. The trial judge in a short memorandum stated, and correctly, that "the question to be determined is whether or not proper and sufficient notice of the intention to surrender was given to the plaintiff." He held that there "had been a sufficient compliance with the statute," i.e., that sufficient notice had been given. In this he erred.

The statute has been recited above; and the important clause is "on notice to the plaintiff." Two questions arise: 1, how long a notice? and 2, must the notice be in writing?

The second question may well be answered first. The proceeding is a court proceeding, and the general rule is that in such case any notice should be in writing. 46 C.J. 555; Hunt v. Langstroth, 9 N.J.L. 223; Tillou v. Hutchinson, 15 Id. 178, 179. Practice act of 1903, section 193. Written notice was given in Van Nest v. Nauman, supra, and doubtless also in Truitt v. Landesman, 108 Id. 109. Section 193 contains the qualifying clause, "unless otherwise specially provided;" but there is no special provision applicable to the case. Section 195 covers only cases in which "no provision is made by law for the mode, time, or duration of such notice." As we have seen, the statute regulates the mode; and as we shall ...


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