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Breech v. Piramide

Decided: March 20, 1950.

DONALD BREECH AND JEAN BREECH, PLAINTIFFS-APPELLANTS,
v.
JOSEPH PIRAMIDE AND GRACE PIRAMIDE, DEFENDANTS-RESPONDENTS



On appeal from the Essex County District Court.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.

Ackerson

The plaintiffs, residents of California, obtained a judgment in 1947 against the defendants in the Municipal Court of Los Angeles for $630.35. The judgment remained unpaid and the defendants moved to New Jersey where the plaintiffs instituted the present action against them in the Essex County District Court to recover on the foreign judgment. Annexed to the complaint herein, and served simultaneously with the summons on June 24, 1949, was a demand for a written specification of defenses pursuant to R.S. 2:32-50. An amended complaint was filed July 11, 1949, and attached thereto was a similar demand. Defendants thereupon served notice to compel plaintiffs to file a bond, or post a deposit, for $100 as security for defendants' costs pursuant to R.S. 2:27-424 et seq., and an order to this effect was entered on September 13, 1949, which also directed

that all proceedings in the action be stayed until such security was deposited. The defendants failed to file any answer or specification of defenses. The plaintiffs did not provide security for costs, but moved for a summary judgment which motion was denied on the ground that they had failed to file such security. An order denying the motion for summary judgment was entered on October 5, 1949.

An appeal was taken by the plaintiffs from both of the aforesaid orders to the Superior Court, Appellate Division, and, while pending there, the matter was certified here on our own motion. Respondents filed no brief and did not argue the appeal.

Plaintiffs contend that R.S. 2:27-424 (formerly section 204 of the Practice Act of 1903, c. 247) requiring security for costs from a nonresident plaintiff is inapplicable to actions in the District Courts. This legislation provides, in part, as follows:

"If plaintiff is a nonresident he shall, if required at any time before notice of trial by notice given to him by defendant, give bond to defendant in the sum of one hundred dollars, with sufficient surety, conditioned to prosecute his action with effect and to pay costs if he discontinues his action, is nonsuited or a judgment passes against him."

Section 2:27-425 provides:

"A nonresident plaintiff may, in lieu of the bond provided for by section 2:27-424 * * *, deposit one hundred dollars * * * as security to defendant for costs."

At this time section 68 of the former District Court Act, P.L. 1898, c. 228 (R.S. 2:32-3) was in effect providing as follows:

"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." (Italics supplied.)

In 1906, in the case of Kienzle v. Gardner, 73 N.J.L. 258, 260 (Sup. Ct. 1906), the foregoing statutory provisions were construed as not ...


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