On appeal from a judgment of the District Court of the First Judicial District of the county of Bergen.
For the appellant, Melosh, Morten & Melosh (Louis G. Morten, of counsel).
For the respondent, Winne & Banta.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued out a writ of replevin. Defendant moved to strike out the state of demand and dismiss the writ on the ground of lack of jurisdiction of the subjectmatter; and plaintiff countered with a motion for leave "to make such amendments to the process and pleadings * * * as he may be advised are necessary or advisable in order to meet the objection thereto made by the defendant that no
venue was laid therein," and "to amend the process and the pleadings * * * by annexing thereto a copy of his appointment as agent of the plaintiff, * * * in order to meet the objections of the defendant that the pleadings fail to disclose any right to possession in plaintiff."
The District Court judge, by order entered on April 18th, 1939, quashed the writ and dismissed the state of demand, and directed the issuance of "a writ of inquiry * * * to ascertain the value of the goods and chattels and the damages of the defendant;" and, by order entered on May 18th ensuing, he denied plaintiff's application for leave to amend, and ordered "judgment final" in favor of defendant, "pursuant to the determination" embodied in the order first mentioned. Plaintiff has taken separate appeals from these orders, and from the final judgment so entered.
The first ground urged in support of the point of lack of jurisdiction is that "neither the state of demand nor the writ of replevin disclosed where the goods or chattels, subject of the replevin action, were located." It is well taken.
Neither the writ nor the state of demand makes such disclosure. The case is ruled in this respect by Resnick v. Jefferson Holding and Building Corp., 14 N.J. Mis. R. 875, where this court, in dealing with a similar situation, held that the action should have been dismissed for lack of jurisdiction. The statute bestows jurisdiction upon the District Court of the county "where the goods or chattels may be * * *." R.S. 1937, 2:32-279.
But plaintiff maintains that, even so, there was error in the denial of his motion to make such amendment as would cure this jurisdictional lack and "meet" defendant's "objections" to the pleadings respecting the right of possession. We do not think so.
Such amendments are within the sound discretion of the court. Harris v. Roth, 6 N.J. Mis. R. 1006. And we are not of the view that in the circumstances here presented the denial of this motion constituted an abuse of discretion. The action was brought, not by the claimant of the goods, Sisco Dairy Co., Inc., but by the plaintiff, ...