On appeal from the Middlesex Common Pleas Court.
For the appellant, Norman B. Grobert.
For the respondent, Harry Levin.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The suit is in replevin, by a chattel mortgagee who claims to have seized and sold the chattels and bought in at the sale. Defendant is a purchaser of the same chattels (five automobile trucks) at another sale to satisfy garage keeper's liens. The meritorious question decided below was, which was the better title. Coupled with that, on this appeal, are certain questions of procedure.
The Court of Common Pleas, on cross-motions to strike out the complaint and the answer, held, in a careful opinion, that on the ex parte affidavits considered, it appeared that the chattel mortgage had not been recorded with the promptitude required by law, and hence was void against creditors of the mortgagor, of whom the defendant was one. Accordingly, that court struck out the complaint and awarded a summary judgment for defendant. Plaintiff then obtained a rule to show cause why the judgment should not be vacated, and judgment entered for the plaintiff. Depositions were taken and the rule argued, and later discharged. The appeal is from the judgment as originally entered. See Knight v. Cape May Sand Co., 83 N.J.L. 597. That judgment was a summary one, entered on ex parte affidavits. By the defendant's affidavit in the present case, it appeared that the chattel mortgage had been executed, acknowledged, and the affidavit of consideration sworn to, at the office of the plaintiff company, about five blocks from the county court house, where chattel mortgages are recorded, on May 9th, 1933, but not recorded until three-twenty-nine P.M. of May 10th. The affidavit of Samuel D. Wiley for plaintiff states substantially the same facts. It contains no explanation whatever as to why a day elapsed before recording, when ten minutes should ordinarily have sufficed. This was pointed out in the opinion of Judge Lyon in the Common Pleas. He held, and as we conclude correctly, that this was not an "immediate" recording because not "as soon as might have been by reasonable dispatch under the circumstances of the case." The word "immediate" is attached to "delivery" in section 4 of the Chattel Mortgage act (Comp. Stat., p. 463), but by judicial construction has been applied also to the recording, which is the statutory alternative to immediate delivery and continued change of possession. Roe v. Meding, 53 N.J. Eq. 350 (at pp. 361, 368); Brockhurst v. Cox, 71 Id. 703, 706; affirmed, 72 Id. 950.
This disposes of the only legal question before us on the merits. It remains to consider certain procedural questions raised by appellant's brief.
The first is that, inasmuch as the defendant had filed an answer, it was too late for the court to entertain a motion for summary judgment.
The answer averred, among other things, that the chattel mortgage had not been forthwith recorded as required by law, and ...