On appeal from a judgment of the Supreme Court, whose per curiam opinion is reported in 112 N.J.L. 225.
For the appellant, William I. Garrison and Samuel Backer.
For the respondent, Clifford A. Baldwin and Charles P. Brewer.
The opinion of the court was delivered by
DONGES, J. The question presented by this appeal is whether or not the Court of Common Pleas may refuse to pass upon the merits of a further application of an insolvent debtor who has twice made application for his discharge, under the insolvent laws, and has twice been refused his discharge.
The appellant was in custody on a capias ad satisfaciendum. He gave notice of his intention to apply for his discharge as
an insolvent debtor, filing an inventory of assets and list of creditors, and gave bond. The court declined to discharge him, for reasons that do not appear in the state of the case, and remanded him to prison.
Thereafter he again applied to the Common Pleas Court for his discharge, as an insolvent debtor, apparently giving a new notice and filing a new bond, with an inventory of assets and list of creditors. Again, the court refused him his discharge, for reasons that do not appear, and remanded him to prison.
He thereafter made a third application, filed a bond and inventory of assets and a list of creditors, and gave notice as required by statute.
The state of the case discloses that the order appealed from recites that the creditor at whose instance the appellant was arrested filed a plea of res adjudicata and that the court was of opinion that the plea was good and should be sustained, and it further recites that under two prior orders applications were refused, and "that no new matter is presented to the court. Therefore the application is denied and the discharge refused."
The record, as above stated, does not disclose what proceedings were had under the two prior applications, nor for what reason those applications for discharge were denied. The statute, section 17B (2 Comp. Stat., p. 2831), provides that the debtor may make a new application "and the same proceedings shall be had for that purpose as fully and effectually as if no previous application for that purpose had been made." The Supreme Court, in passing upon the matter, felt bound to follow the suggestions in the opinion filed in Koch v. Costello, 93 N.J.L. 367. However, as was said by the writer of that opinion, the question was not before the court for decision, so that what was said was clearly obiter dictum and what was there said on the question is not to be taken as an adjudication.
The record in this case discloses that the judge before whom the application was pending made a certificate ...