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Warren Balderston Co. v. Ivory

Decided: December 12, 1940.

WARREN BALDERSTON COMPANY, RESPONDENT,
v.
HARRY S. IVORY ET UX., APPELLANTS



On appeal from the Supreme Court.

For the appellants, W. Douglas Blair.

For the respondent, Louis Rudner.

Parker

The opinion of the court was delivered by

PARKER, J. We consider that this "appeal" is premature, and not properly before us.

The suit is in contract for work and labor done and materials furnished by plaintiff in and about the electrical equipment of a house and office for the defendants, husband and wife. The first count of the complaint is based on a claim of agreed prices: the second, relating to the same work and materials, on a quantum meruit. The defenses are, in substance, a lump sum contract, the contract price having been paid: defective work: and a denial that all the labor and materials claimed had been furnished. There was a motion to strike the answer as sham, and also as insufficient in law. There were the usual affidavits for and against the motion, which was argued before a Circuit Court judge sitting as a Supreme Court commissioner. Supreme Court rules 92 and 93. He decided, in substance, that as to part of the lengthy bill of particulars the defendants had not shown such facts as were sufficient to entitle them to defend (rule 80) and that the remainder of the claim would be sent to a referee; presumably by virtue of section

155 of the Practice act of 1903 (Pamph. L., at p. 579), now N.J.S.A. 2:27-178 et seq. As to the part that he adjudged undisputed, he made a rule recommending "judgment" against the defendants to that extent, reserving to the plaintiff the right to proceed further in the cause as to the remainder of the claim. There was a rule for "judgment final" accordingly, signed by a justice of the Supreme Court, and "judgment" for $816.75, part of the claim, was entered accordingly, with reservation of the right of further litigation in the cause as regards the residue. So that the record shows a claim of some $2,600 split into two parts, one amounting to $816.75 and in "final judgment" and the other undetermined.

At common law the settled rule, of course, is that writ of error (now appeal) does not lie until after final judgment, not only as to all the issues, but as to all the parties. Sautter v. Order of Heptasophs, 74 N.J.L. 608; 65 A. 990; Gottfried v. Gottfried, 106 N.J.L. 115; 148 A. 719; Freint v. Gilmore, 110 N.J.L. 170; 164 A. 272.

In Allen v. Tyler, 32 N.J.L. 499, Chief Justice Beasley said (at p. 501), "It must be considered as the settled rule of practice that a judgment, or an order, or award in the nature of a judgment, to be removable by writ of error, must be final in the suit, not as to an intermediate or incidental particular, but with regard to the principal matter in controversy in the action."

In Cooper v. Vanderveer, 47 Id. 178, 179, the same jurist remarked: "A writ of error will not run until the conclusion of the course of law in the court of first instance. The most serious vexation and delay would be attendant upon the opposite rule."

The practice of framing a declaration at common law (now called a complaint) in several counts, and per contra of filing several pleas, is an ancient one; and we have several decisions bearing on the appellate practice where one or more issues had been disposed of and others left open. In Sautter v. Heptasophs, supra, there was a judgment for plaintiff on demurrer to a special plea, but the plea of general issue remained open for ...


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