On certiorari to review an order for a new trial entered in the District Court of the Third Judicial District of the county of Morris.
For the prosecutor, Jack Altshuler.
For the respondent, Harry S. Shuback.
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Did the trial judge act in excess of power, as prosecutor claims he did, when, under the circumstances of the case at bar, he opened a prior default judgment against respondent, granted a new trial and stayed all proceedings to enforce the collection of the judgment thus entered against respondent until the further order of the court?
The facts giving rise to the stated question are simple. On June 26th, 1930, prosecutor instituted suit against Carl Ritzer and Frank Ritzer, trading as Ritzer Bros., for the recovery of $206.23 for goods sold and delivered to the partnership in 1930. The summons was made returnable July 7th, 1930. The return of the constable reads as follows: "I served the within summons June 27th, 1930, on defendants themselves, by reading it to them and giving them a copy thereof." The cause was adjourned to July 21st, 1930, when a judgment of $224.33, plus $16.41 costs, was entered by default against both defendants as sued.
The record of subsequent proceedings, as printed, is incomplete; but the state of case contains a copy of an examination in supplementary proceedings of the respondent, Frank Ritzer, on November 17th, 1930, "pursuant to an order made in the above entitled action on the 10th day of November, 1930." The order is not printed; but the recital of that order necessarily implies the issue of an execution as against the goods and chattels of Frank Ritzer, and the return of that execution unsatisfied, prior to the order of examination, as until 1933 the statute required these preliminary steps. Frank Ritzer appeared and was examined without any protest or suggestion that he had not been served with summons; and so far as the case shows, his first claim of non-service was about seven years later, when the statute of limitations had run, and an execution in Morris county had been returned unsatisfied, an alias execution issued to the sergeant-at-arms of a District Court in Warren county (R.S. 2:32-155) and (as may be read between the lines) leviable assets had been found in that county, as it does not appear that such alias execution had been returned.
On November 18th, 1938, Frank Ritzer filed a verified petition in the above cause setting forth that the partnership between his brother and himself had been dissolved prior to 1929; that at the time of the dissolution the partnership was indebted to prosecutor in the sum of $82 which he (Frank Ritzer) personally paid and was given a receipt showing full payment; that he advised prosecutor's representative that he was no longer in partnership with his brother, and that any credit extended to his brother, Carl, would be on the sole obligation of the latter. Respondent further stated in this petition that he was never aware of the suit which resulted in the judgment against himself and his brother; that he was never served with any "papers" and that he had no knowledge of any "papers" ever having been served on any member of his family; that if service was effected on Carl the latter either negligently or willfully withheld advising respondent, and that he was not liable for the debt. A rule was allowed to show cause (1) why the judgment against Frank Ritzer should not be vacated; or (2) why said judgment should not be reopened permitting said Frank Ritzer "to enter a defense to said action," and staying proceedings on the judgment as to him.
On the return of the rule respondent offered supporting proof in affidavit form; prosecutor also offered proof in like form in which it denied that it ever received any notification of the withdrawal of respondent from the partnership until that fact was disclosed in respondent's petition; that it had made the sales, for which judgment was recovered, to both Carl and respondent as co-partners, and that respondent had knowledge of the judgment because when he was examined in discovery proceedings on November 17th, 1930, he did not deny that he owed the money for which the judgment had been obtained. Incidentally, there is nothing in that testimony, as submitted but claimed to be incomplete, to indicate that respondent was asked whether he owed the debt; nor is there anything to indicate that respondent then claimed that he did not owe the debt.
Upon the proofs, in the form submitted, the judge entered an order on December 5th, 1938, ...