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Ehnes v. Quinn

Decided: December 27, 1941.

FRED E. EHNES, PLAINTIFF,
v.
JAMES QUINN, DEFENDANT



On appeal from the District Court.

For the plaintiff, Jacob J. Greenman.

For the defendant, Frank J. Backes.

Before Justices Parker, Donges and Colie.

PER CURIAM.

This appeal is from the "determination" of "the [District] Court * * * whereby the judgment entered in the above stated action in favor of the plaintiff and against the defendant was vacated."

Turning to the "determination" we find that it reads in part as follows: "ordered that said judgment be vacated and all other proceedings set aside." (Italics supplied.) If this "determination" is merely the opening of a default judgment for trial, including the taking of proofs by both parties, it is clear that it is not reviewable by appeal; but if the "determination" is to be considered a finality, appeal will lie.

The record shows that the action is on the guarantee of a sealed note dated April 22d, 1929, purporting to have been made by Ellen Quinn to the order of The Phoenix Plan. There is a paper printed in the case and headed "Endorsement" taking up a full printed page, which is really a guarantee of payment apparently signed by William Quinn. At the end of this guarantee there is a further paper reading as follows:

"For value received, the New Jersey Co-operative Finance Corporation acting herein by its president, duly authorized, does hereby endorse and assign the right, title and interest, in the within document to Monroe Loan Society, without recourse.

New Jersey Co-operative Finance Corporation, Matthew J. Lauer, President."

How the New Jersey Co-operative Finance Corporation came into the picture is not explained.

James Quinn is plainly not liable on the note itself, but, if liable at all, is liable on the instrument which is loosely called an "endorsement." There is nothing to show any transfer of the interest of The Phoenix Plan in the guarantee to the plaintiff Ehnes apart from the averment in the state of demand that "Plaintiff is the owner and holder of said note."

Defendant, failing to appear on the return date of the summons or at any other time, there was the usual affidavit of verification of the claim permitted by the statute, sworn to by the plaintiff, Ehnes, and which states "that there is due and owing to the plaintiff the sum of One Hundred and Fifty Dollars, no cents ($150.00), being the principal and interest due upon a certain promissory note mentioned and described in the State of Demand in this cause; the original of which said note is annexed hereto." On the application to open the default judgment one of the claims was that there had been no legal service of the summons upon the defendant William Quinn, and another that there had been no legal service on James Quinn, but the court did not rest on that, nor does it appear to have gone into the question at all. The matter was submitted on affidavits of ...


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