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F. Bowden Co. v. Deuschle

New Jersey Supreme Court


Decided: January 5, 1942.

F. BOWDEN CO., PLAINTIFF-RESPONDENT,
v.
GEORGE DEUSCHLE, DEFENDANT-APPELLANT, R. & A. CONSTRUCTION CO., INC., DEFENDANT-RESPONDENT

On appeal from a judgment of the First District Court of the City of East Orange.

For the defendant-appellant, Fred Scherer.

For the plaintiff-respondent, Hartpence & Grammer.

Before Justices Parker, Donges and Colie.

Donges

[127 NJL Page 464]

The opinion of the court was delivered by

DONGES, J. This is an appeal from the District Court in a case involving a claim on an alleged "stop notice" given by plaintiff to defendants.

The state of case submitted consists only of the case settled by the trial judge, the notice of appeal, specifications of determinations and docket entries of the clerk.

The statute provides (R.S. 2:32-2) "except where there is an express provision of law providing otherwise, the practice and procedure in the Circuit Courts shall, in so far as applicable, apply to the District Courts." In a Circuit Court appeal the pleadings and judgment thereon would constitute the record, and while ordinarily in a District Court there is only one pleading, namely a state of demand, that pleading is the basis of the judgment and an essential part of the record.

[127 NJL Page 465]

Rule 145 of this court requires that in appeals from the District court there shall be furnished to this court a "state of the case and the copy of the judgment record."

R.S. 2:60-139, dealing with the enforcement of contractors' liens, provides that the "summons * * * with the complaint annexed," shall be served in the manner set forth.

In the instant case, there is no copy of the required papers and no judgment record. Katzin v. Jenny, 74 N.J.L. 131.

In Galvin v. Ostrander Brick Co., 84 N.J.L. 530, it was held:

"There must be a judgment record before this court, on which it may impress its ruling of affirmance or reversal; and the absence of such judgment record leads to a dismissal of the appeal." Citing cases.

To the same effect are Maccia v. Stanzione, 84 N.J.L. 509, and Zyk v. Prudential Insurance Company, 13 N.J. Mis. R. 714.

The state of the case being defective and not in accordance with the practice in this court, the appeal is dismissed, with costs.

19420105


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