On appeal from the New Jersey Supreme Court.
For the appellant, Cox & Walburg (Harry E. Walburg, of counsel).
For the respondent, Cohn & Kohlreiter (Peter Cohn, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. Plaintiff-respondent in this action recovered a judgment in another action on its counter-claim against the Diamond Rubber Company on June 30th, 1932, for $2,000, in the Circuit Court of Passaic county. From that judgment the Diamond Rubber Company appealed, and in connection with such appeal filed an appeal bond wherein it was principal, and the defendant-appellant herein, Employers' Liability Assurance Corporation, was surety. The condition of that bond reads: "That whereas the above
bounden The Diamond Rubber Company, Inc., has appealed from the judgment and determination of the Passaic County Circuit Court, in a suit wherein the said The Diamond Rubber Company, Inc., is a plaintiff and the said Phil Feldstein is defendant, in an action at law, Now, Therefore, if the said The Diamond Rubber Company, Inc., shall appear and prosecute the said appeal in the Supreme Court of Judicature of the State of New Jersey, shall stand to and abide the judgment or order of said Supreme Court and shall pay the amount of the judgment rendered against it in the said Passaic County Circuit Court, * * * then this obligation to be void; otherwise to remain in full force and virtue."
The appeal by the Diamond Rubber Company to the Supreme Court resulted in an affirmance on June 23d, 1933. The judgment has not been paid.
Thereafter the Diamond Rubber Company served plaintiff with a notice of appeal to the New Jersey Court of Errors and Appeals but did not file the same. Later the plaintiff herein instituted suit against the defendant-appellant herein upon its bond, upon the theory that no appeal was pending since no notice of appeal had been served and filed. To such suit defendant-appellant filed an answer setting up its defense that "said appeal by The Diamond Rubber Company, Inc., has not yet been heard and determined by the New Jersey Court of Errors and Appeals, and is still pending and undecided by that court."
Thereafter plaintiff gave notice of a motion before the Circuit Court judge sitting as a Supreme Court commissioner to strike out the answer as frivolous and setting forth no legal defense, and for summary judgment. Affidavits were submitted by both sides to the effect herein stated. The Circuit Court judge on October 14th, 1933, upon it appearing to him conclusively that the notice of appeal had not then been filed, struck out the answer and a justice of the Supreme Court thereupon entered final judgment. This is the appeal of the defendant from that judgment and is grounded upon the proposition that the court erred in striking out the answer.
The defendant's argument seems to be that the service upon the plaintiff of a notice of appeal invoked the jurisdiction of the Court of Errors and Appeals.
We think not. The jurisdiction of the Court of Errors and Appeals is invoked only upon the ...