On petition of Florence C. Packer.
For the petitioner, Harry Krieger.
For the Hunterdon County National Bank of Flemington, George K. Large.
For Marjorie L. Saxe, Herr & Fisher (Ryman Herr).
Before Justices Case and Donges.
The opinion of the court was delivered by
CASE, J. On the petition of Florence C. Packer, presented on behalf of herself and George D. Packer, co-executors of the last will and testament of Ezekiel Packer, deceased, a rule issued directing the Hunterdon County National Bank of Flemington, Marjorie L. Saxe and the clerk of this court to show cause, at the opening of the October, 1937, term, why an order should not be made directing the clerk to issue execution to the sheriff of Hunterdon county (wherein certain lands formerly of the defendant John P. Packer, and now belonging to Majorie L. Saxe are sitaute) commanding the sheriff to make the amount of a judgment entered in the above entitled cause. The case was moved on the return day on oral argument but went off for the reason that there was not a state of facts upon which a decision could be made. At the January term the case again came in, this time upon briefs, but still without proofs essential to a clear determination. Copies of certain court records in the cause and of certain papers in the court files which were not produced in the first instance are laid before us, presumably by the prosecutor of the rule, but, even assuming these to be properly authenticated as a state of case, we are without some of the facts extrinsic to the court files and records which are needed to give vitality to the issue. No testimony was taken. There is no stipulation. The proofs, such as they were, upon which the rule issued were exhausted when that step was accomplished. Peer v. Bloxham, 82 N.J.L. 288; Arcoil Manufacturing Co. v. New Brunswick Fire Insurance Co., 117 Id. 214. The prosecutor, the bank and Saxe have severally filed briefs, and each brief contains a statement, called the "facts," giving the version of the respective party. It is not the function of the court to make comparison of these several ex parte statements in the endeavor to extract from them such points of agreement as will be sufficient to form a composite factual basis for decision. Nevertheless, we believe that the few extraneous facts assumed in this opinion are conceded to be true.
The records or court files before us are: the summons and
complaint in the above entitled suit, the assessment, rule for judgment, final judgment and executions issued thereon against the named defendants or some of them, an assignment from the bank to the executors, a warrant by the executors for a partial satisfaction, a warrant by the bank for a further satisfaction, and, incorporated within the brief filed by the bank, what purports to be a reply by that party to the allegations of the petition upon which the rule issued.
The judgment was entered by default on October 8th, 1934, as follows:
"Judgment entered this eighth day of October, A.D. nineteen hundred and thirty-four in favor of plaintiff and against defendants John P. Packer and Almar G. Cole for the sum of One thousand two hundred twenty two dollars and fifty-eight cents damages and against defendant Ezekiel Packer for the sum of five hundred fifty-nine dollars and seventeen cents damages and sixty-seven dollars and ten cents costs. Damages $1,222.58 agst. J.P.P. & A.G.C. Damages $559.17 agst. E.P. Costs $67.10."
The question is whether lands formerly of the judgment debtor, John P. Packer, and conveyed by him to Saxe in January, 1937, for valuable consideration may now be reached by execution under that judgment. ...