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McDermott v. Henry

New Jersey Supreme Court


Decided: April 4, 1935.

HARRY MCDERMOTT, APPELLANT,
v.
OWEN HENRY ET AL. (FIRST-MECHANICS NATIONAL BANK OF TRENTON, GARNISHEE), RESPONDENTS

On appeal from Mercer Common Pleas.

For the appellant, Charles Quinn.

For the respondents, administrators cum testamento annexo of Roger Henry, deceased, William Reich.

Before Brogan, Chief Justice, and Justice Parker.

Parker

[114 NJL Page 545]

The opinion of the court was delivered by

PARKER, J. The plaintiff-appellant recovered a judgment in the Mercer Common Pleas against the administrators cum testamento annexo of the estate of Roger Henry, deceased, on a debt of said deceased. Execution issued on the judgment and was levied on a bank balance standing to the credit of the estate, as a "right and credit" of said estate. Pamph. L. 1915, p. 182, ยงยง 1 and 2. Under section 9 of the same act, the court made an order that the bank show cause why the balance should not be applied to satisfaction of the execution. The administrators resisted the application, and the court made an order discharging the rule to show cause, and quashing the execution. The appeal is from this order.

We find it unnecessary to go into the merits, as the rule is settled that a review of these proceedings in aid of execution must be by certiorari. Gordon v. Pannaci, 90 N.J.L. 392. The case of Eames v. Stiles, 31 Id. 490, cited for appellant,

[114 NJL Page 546]

is not applicable, for the reason that the review in that case was in the Court of Errors and Appeals, which does not review by certiorari. In the present case the Supreme Court is asked to review a proceeding not according to the course of the common law, and in an inferior tribunal. Such review on well settled principles is by certiorari.

The appeal will be dismissed, with costs, but without prejudice to an application for certiorari.

19350404


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