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Mueller v. Seaboard Commercial Corp.

Decided: June 12, 1950.


On appeal from Essex County Court, Law Division.

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


This is an appeal to the Appellate Division of the Superior Court from an order of the Essex County Court, Law Division, denying the defendant's motion (1) to vacate an order made on November 7, 1949, authorizing the issuance of a writ of attachment for $25,000, and (2) to quash the writ issued pursuant thereto. We have certified the appeal on our own motion.

It is observed, in limine, that the order complained of is not a final judgment and since there has been nothing brought to our attention indicating that it is such an interlocutory judgment from which an appeal will lie, see Rules 4:2-1 and 4:2-2, the appeal is inappropriate. Under our former practice the only manner in which a review of a refusal to quash a writ of attachment could be had was by a writ of certiorari. Jaudel v. Schoelzke, 95 N.J.L. 171 (E. & A. 1920). Prerogative writs have been superseded, 1947 Constitution, Art. VI, ยง V, par. 4, Rule 3:81-1, but the relief heretofore available thereby is now available by an action in the Law Division of the Superior Court. Rule 3:81-2. The proper remedy of the defendant in the instant case, accordingly, is prescribed by the latter rule. However, since the case has been certified by us of our own motion, Rule 1:5-1(a), we shall dispose of it on the merits.

The plaintiff filed five affidavits in support of the order for a writ of attachment. No affidavits were filed by the defendant. The defendant in its motion to set the order aside and again on this appeal asserts that the affidavits are insufficient under the provisions of R.S. 2:42-88 in that they fail to establish that the plaintiff has a cause of action.

The statute provides in part as follows:

"A writ of attachment may issue out of the Superior or County Courts upon the application of any resident or nonresident plaintiff against the property, real and personal, of any person, corporation or organization against whom or which a summons might issue, upon proof, by affidavit entitled in the cause then proposed or then pending to the satisfaction of the court in which an action is about to be commenced, or to a judge thereof establishing: * * *

"b. That plaintiff has a cause of action, the nature and particulars of which he shall specify, and that defendant absconds from his creditors, or is a nonresident of this State, and that summons cannot be served on him; but an attachment shall not issue hereunder against the rolling stock of a common carrier of another State or against the goods of a nonresident in transit in the custody of a common carrier of this or another State, or * * *"

Where a motion to dissolve or quash an attachment is based upon the original papers on which the attachment was granted, the averments contained in such papers are to be deemed true, and all legitimate deductions and inferences from what appears in such papers must be made and construed in favor of plaintiff, and if such papers show a prima facie case for the attachment this is sufficient. From the plaintiff's collective affidavits it appears: The defendant is a Delaware corporation with its principal place of business at 1819 Broadway in New York City. It is not authorized to and does not do business in New Jersey and has no officers or agents resident in this State upon whom a summons may be served. It was engaged in the business of corporate financing until September, 1948, when it was publicly announced that as a result of its own financial troubles it would find it necessary to liquidate the accounts of its customers. An expert liquidator, Frederick W. Raeder, was thereupon placed in complete charge of the defendant's business activities. One of the defendant's accounts receivable at this time was a debt of Technical Devices Corporation, a New Jersey corporation engaged in manufacturing with its principal place of business in Roseland, New Jersey. The defendant is the owner of all the outstanding stock of Technical. In 1949 the defendant decided to liquidate Technical and appointed Leslie E. Roberts, the president of Technical, as its agent for that purpose.

All moneys received by Technical were to be paid over to the defendant. Roberts reported to Raeder and followed his instructions on all corporate matters.

The plaintiff is the owner of certain goods and chattels worth $25,000. These chattels were lawfully in the possession of Technical and being used by it under an option to purchase. In April, 1949, Roberts informed the plaintiff that Technical did not intend to exercise its option and that it had no further use for these chattels. The plaintiff thereupon sought to recover possession of these chattels, but without success. In a visit to Technical's place of business in the latter part of April, the plaintiff was informed by Eli Saltz, the person in charge of Technical's plant in Roberts' absence, that Roberts, acting on orders of Raeder, had instructed him not to turn this property over to anyone. Having been refused possession of his property, the plaintiff thereupon filed a complaint against Technical and Roberts for damages resulting from the conversion of these chattels. In his answer to this complaint, Roberts denied that he actively controls and manages the business of ...

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