On appeal from the Supreme Court.
For the respondent, James J. McGoogan.
For the appellants, Louis B. Levine.
The opinion of the court was delivered by
PERSKIE, J. This is an appeal by George H. Webb, administrator cum testamento annexo of the estate of William J. Roessler, desceased, and United States Casualty Company, surety on his bond, from a directed verdict of the trial judge in favor of the respondent, a judgment creditor of the estate, in the penal sum of the bond, plus interest, amounting to $15,562.
Our study of the state of case submitted fails to disclose a postea, notice of appeal, or the judgment complained of and to be considered by this court. All that appears in the record is a mere statement, at the end of the transcript of the testimony produced and motions made before the trial judge, in the manner following: "The court: The jury may return
a verdict in favor of the plaintiff and against the defendants in the sum of $15,562." "(The jury returned a verdict accordingly.)"
This appeal is not properly before us. Time and again this court has indicated the proper practice on appeals. It is clear and simple. It must be observed.
In the case of Kleinman v. The Globe and Rutgers Fire Insurance Co., 111 N.J.L. 374; 168 A. 648, this court held:
"It is elementary learning that an appeal does not lie in any case until there is a final judgment. 2 Comp. Stat. 1910, p. 2207; Salmons v. Rugyeri, 103 N.J.L. 596; VanHoogenstyn v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 189 (section 25, Practice act -- 1912). 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, 75 A. 516."
Since no point is made on this score and the further fact that other phases of this case have received the consideration of this court (In re Roessler, 110 N.J. Eq. 570, decided May 16th, 1932), we have concluded to consider the case on the merits, and as though it were properly before us.
On September 6th, 1932, the Orphans Court of Mercer county made an order, which, inter alia, provided: "Said George H. Webb, administrator, within ten days from the date hereof, deposit in the bank in Trenton, in which he keeps the funds of the estate, said sum of $3,850.58 in cash * * * and it appearing that the said administrator acknowledges that the personal estate of the estate amounts to $7,765.83, but that he has used and expended all but $3,915.25 thereof represented by a second ...