On defendant's rule to show cause why previous remittitur on affirmance should not be set aside, and judgment of reversal entered.
For the rule, John A. Bennett.
Before Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. The case presents an unusual but not an unprecedented situation. The present action is against the surety on a defendant's bond in replevin, conditioned for the return to the plaintiff herein of certain goods in as good condition as at the time of the recaption, if said goods should be adjudged to the plaintiff in replevin. The plaintiff had a judgment in the trial court on September 30th, 1930. The goods not being returned in performance of the condition, plaintiff in replevin on October 10th began suit on the bond
against the surety. On October 28th defendant surety answered in the suit on the bond, and on the same day defendant in replevin, a corporation named Capital Associates, took an appeal to this court in the replevin suit. There was a judgment on the bond on March 3d, 1931, and a similar appeal to this court which was argued on briefs at the May term, 1931, and decided November 16th, 1931, affirming the judgment against the surety. General Motors Acceptance Corp. v. American Surety Co., 108 N.J.L. 229. The appeal in the replevin suit had been argued in this court in January, 1931, but was still pending at the time of the affirmance in the bond suit, and was not decided until January 20th, 1932, at which time this court reversed the judgment in the replevin suit. General Motors, &c., v. Capital Associates, Ibid. 421. It is therefore evident that the affirmance in the bond suit was properly predicated on the persistence of the judgment for the plaintiff in the replevin suit. The judgment of reversal in the replevin action was not entered until March 10th, 1932, on which date this court also made a rule in the bond suit withdrawing the rule of affirmance therein and directing the record previously remitted to be returned to this court; staying execution, and restraining any proceeding to enforce the judgment on the bond. The necessary effect of this rule, if valid, was to suspend the affirmance in the bond suit until further order of the court.
On March 19th the court wrote to counsel asking whether they proposed to do anything further on their application to hold the judgment on the bond, and counsel replied that as they had an order staying execution in the bond suit, they would probably leave the matter dormant until after plaintiffs' time for taking an appeal (in the replevin suit) had lapsed.
But that situation never arose. An appeal was taken by plaintiff in the replevin suit on March 30th, argued at October term, 1932, of the Court of Errors and Appeals and decided January 23d, 1933. 110 N.J. Law 61. These facts, though of course known to the court in a general way, were not officially presented in the bond suit, which was allowed
to remain in statu quo until April, 1933, after the final decision in the replevin suit had gone down to the Circuit Court.
There being thus a final judgment for defendant in the replevin suit, and the rule recalling the remittitur in the bond having slept while the other appeal was pending in the Court of Errors and Appeals, the defendant in the bond suit, viz., the surety company, obtained the present rule to show cause looking to the definite vacation of ...