On appeal from a judgment of the Supreme Court.
For the appellants, Edmund A. Hayes.
For the respondent, George S. Silzer.
The opinion of the court was delivered by
HEHER, J. This is an action by a mortgagee against the mortgagor and successive assuming grantees. The mortgagor was not served with process. For an asserted lack of jurisdiction of the subject-matter, the cause was transferred to the Court of Chancery under R.S. 1937, 2:26-60, et seq.
It is maintained, in limine, that the order of transference is not a final judgment, and the appeal should therefore be
dismissed. The point is without substance. The cited statute was designed to permit the transference only where there is an utter lack of jurisdiction of the cause in the court in which it pends. The transfer is necessarily predicated upon a determination of lack of jurisdiction of the subject-matter -- a judgment final in character as regards the court whence the transfer is made, since it puts an end to the action therein. Vide Curran v. Carroll, 101 N.J.L. 329.
But there was jurisdiction at law. The cause is ruled in this behalf by the case of Herbert v. Corby, 124 N.J.L. 249, affirmed at the current term of this court on the opinion rendered below by Chief Justice Brogan. 125 Id. 502.
Yet respondent finds what he conceives to be a difference of substance -- i.e., that in Herbert v. Corby, supra, there was "but one assuming grantee," and "a circuity of action is not involved, nor any of the equities." It is not well taken.
The creditor beneficiary's capacity to sue at law on a sealed instrument is not so circumscribed. One of the reasons for equitable intervention in this class of cases was that the common law procedure was not adapted to an adjudication of the controversy, since it contemplated but two sides to a case, and a community of interest on each side. But now, under the modern practice, the mortgagor may, if necessary, be joined in the action at law. Pamph. L. 1912, pp. 377, 378, §§ 4, 6, 8, 9; R.S. 1937, 2:27-24, 2:27-25, 2:27-28, 2:27-31. Unlike its English prototype, our Practice act permits several defendants to be sued on separate causes of action, "if the causes of action have a common question of law or fact and arose out of the same transaction." R.S. 1937, 2:27-38. The English statute sanctioned this course only as to plaintiffs. And judgment may be entered "in such form as the nature of the case and the recovery or relief awarded may require." R.S. 1937, 2:27-245. It "may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and the court may determine the ultimate rights of the parties on each side as between themselves, and may grant to a defendant any affirmative relief to which he may be entitled." R.S. 2:27-247. Where there is a judgment against a principal and surety, payment
by the surety is not to be considered a satisfaction of the judgment, except as to the surety, who shall have the full benefit and control of the judgment to compel repayment from the principal or contribution from the co-surety; and, on application, "the court or judge ...