On appeal from the Supreme Court.
For the appellants, Richard Doherty.
For the respondent, John H. Jobes.
The opinion of the court was delivered by
PARKER, J. The appeal is from a judgment entered pursuant to a special rule signed by the present Chief Justice, and based on the grounds that defendants had failed to file any affidavit of merits within ten days after service of summons and complaint, and had likewise failed to file any answer within twenty days after such service. Only one ground of appeal is assigned, viz.:
"The statutory course of pleading having been interrupted through the plaintiff's unlawful and improvident entry of a previous judgment against the defendants, December 2d, 1932, which judgment was opened and set aside on January 22d, 1933, the judgment appealed from was unlawfully and prematurely entered herein without the defendants being first ruled to plead and before the defendants were in default in respect of answering the complaint."
We consider that the "statutory course of pleading" was not "interrupted" because it was never really set in motion: and that the entry of judgment on December 2d, 1932, was
regular, and neither unlawful nor improvident. It was indeed, by direction of the Chief Justice, opened and set aside; but even then no course of pleading was set in motion, and no rule to plead was required.
The summons and complaint having been duly served, with the usual notice calling for the filing of an affidavit of merits within ten days, the defendants waited until the last day, December 1st, and on that day served notice of motion to strike out the complaint, to be heard on December 16th. No affidavit of merits was filed then or at any time since.
It seems to be assumed by the appellants that the service of that notice of motion relieved them from any obligation to file an affidavit of merits; but that is not the law.
Affidavits of a meritorious defense seems to have originated in this state in 1855. Pamph. L., p. 297, § 35. Until 1889 it was merely required that they be filed with the plea or demurrer, which could be treated as a nullity in the absence of such affidavit. Rev. "Practice," section 114. But the act of 1889 (Pamph. L., p. 334), repeated as section 97 of the Practice act of 1903, specifically provides that in actions on contract the plaintiff shall be "entitled to judgment" unless an affidavit of merits is filed within ten days after service of declaration or within such further time as the court or a judge may grant; provided a notice requiring such affidavit is endorsed on and served with the declaration, and that in case such affidavit is filed, the defendant shall have twenty days from service of the declaration in which to plead or demur. In 1906 there was an amendment, but in no particular affecting the present controversy. Pamph. L., p. 677. The Practice act of 1912, repealing this section, substitutes a rule to the same effect, now rule 77.
It seems plain, therefore, that the filing of an affidavit of merits became and remained a prerequisite to the right to plead or demur; in other words, unless there was an affidavit of merits, there was no right to plead or demur. And in Van Dyke v. Oliphant, 13 N.J.L.J. 92, the late Mr. Justice Garrison held that the filing of a ...