For the prosecutor, Martin P. O'Connor.
For the respondent Samuel Roessler, trustee in bankruptcy of Robert N. Cherry, William A. Lord, Jr.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Case No. 233 comes before us on a writ of certiorari, to review the order or rule of the Common Pleas Court of Morris county, dated June 1st, 1934, in and by which it was directed that the judgment which had been entered against the defendants Beatrice W. Cherry and Robert N. Cherry, on April 3d, 1933, in favor of the prosecutor, although previously docketed in the Supreme Court, should be vacated. Case No. 240 comes before us on the rule to show cause, why a writ of restitution should not be granted so that the moneys received by the prosecutor in payment of the judgment which had been vacated should be returned to the trustee in bankruptcy of the defendant Robert N. Cherry.
The stipulated facts disclose that Beatrice W. Cherry and Robert N. Cherry were indebted to the Westfield Trust Company in the sum of $5,377.41, on their promissory note. A default having occurred in the payment of the note the trust company instituted suit in the Morris County Common Pleas Court on March 16th, 1933. Endorsed on the summons and complaint was a notice requiring the defendants to file an affidavit of merits. Personal service was made upon Beatrice W. Cherry but service on Robert N. Cherry was made by leaving the summons and complaint at his place of abode with a member of his family above the age of fourteen years. Neither defendant filed an affidavit of merits. The statutory twenty-day period for the filing of the answers, if any were to be filed, expired on April 6th, 1933. Three days prior to that date, however, the plaintiff caused to be entered a rule for judgment by default for failure to file an answer; the damages were assessed by the clerk. Thereafter, on April 7th, 1933, the plaintiff caused its judgment to be docketed in the Supreme Court, and on April 18th, 1933, caused execution to be issued out of the Supreme Court directed to the sheriff of Union county.
Pursuant to said execution, the sheriff on April 21st, 1933, levied upon a $4,000 mortgage made by one Edward Erickson and wife, to John M. Cherry, and upon one hundred and
fifty shares of stock of the United States Steel Corporation belonging to the defendant Robert N. Cherry. After the statutory procedure had been complied with, the bond and mortgage and one hundred and forty-six shares of the said stock (defendant having claimed four shares as his exemption) were sold on June 6th, 1933, by the sheriff to the Westfield Trust Company for $50.
It also appears that on April 22d, 1933, Robert N. Cherry and Beatrice W. Cherry, his wife, gave a mortgage to the trust company, the stated reason being "to secure the sum of any and all promissory notes heretofore or hereafter made or endorsed by either of them * * * purchased or owned by the Westfield Trust Company." This mortgage was recorded on June 29th, 1933.
Subsequently, on August 25th, 1933, the trust company sold one hundred and ten shares of the said stock, which it had acquired at the sheriff's sale on June 6th, 1933, and realized therefrom the sum of $5,724.07, which it credited to the judgment and which amount was sufficient to pay the judgment and costs. The judgment, however, was not discharged of record.
On August 18th, 1933, defendant Robert N. Cherry was adjudicated a bankrupt and Samuel Roessler was appointed trustee and qualified as such on October 20th, 1933, Roessler being one of the respondents in the certiorari proceedings. Immediately thereafter, on October 31st, 1933, the Westfield Trust Company turned over to said trustee the remaining thirty-eight shares of the steel company stock, as well as the bond and mortgage purchased by it at the sheriff's sale. The trustee accepted these securities with the reservation that it should not operate as a ...