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Kiel v. Bill Williams Auto Sales Inc.

Decided: April 18, 1952.

WALTER KIEL, PLAINTIFF-RESPONDENT,
v.
BILL WILLIAMS AUTO SALES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The transaction on April 12, 1950, in which the defendant sold to the plaintiff a 1937 model Oldsmobile for the sum of $250 was productive of litigation. It originated by the institution on May 10, 1950, of an action by the plaintiff against the defendant in the Hudson County District Court which terminated in the granting of a voluntary dismissal without prejudice.

On January 31, 1951, the present action of a substantially similar nature was instituted by the plaintiff against the defendant in the same court and on March 15, 1951, according to the docket entry it was "dismissed on motion of plaintiff's attorney."

On July 11, 1951, notice was served upon the attorney of the defendant of an application for an order to restore the action "on the trial calendar on the grounds that the defendant failed to carry out his agreement." The court ordered the action "restored to the regular trial calendar as of September 12, 1951." Next came an application on behalf of the defendant for an order vacating the last mentioned order of restoration which was heard on September 20, 1951, and denied by an order filed on September 27, 1951.

The action was tried before the court with a jury on November 1, 1951, and resulted in a verdict and consequent judgment in favor of the plaintiff against the defendant in the sum of $250 and costs.

The defendant's present appeal challenges the propriety of (1) the order restoring the action to the calendar of pending cases; (2) the denial of the application to set aside that order; (3) the admission of certain parol evidence; and

(4) the denial of the motion for an involuntary dismissal of the plaintiff's alleged cause of action at the conclusion of the introduction of the evidence.

At the time of the voluntary dismissal of this action by the plaintiff on March 15, 1951, the plaintiff had previously dismissed voluntarily an action "based on or including the same claim" arising out of the same transaction. Were this an endeavor on the part of the plaintiff to prosecute a third action against the same defendant upon the same claim, we might conclude that the voluntary dismissal of this, the second action, operated as a bar prohibiting the plaintiff from the reinstitution and prosecution of another action upon the same claim. Rule 3:41-1, a. Vide, Mayflower Industries v. Thor Corp. , 15 N.J. Super. 139, 161 (Ch. Div. 1951); Kelleher v. Lozzi , 7 N.J. 17, 26 (1951).

Here it is significant to observe that the judgment of dismissal was reopened and annulled, for such we infer was the intention of the court in restoring the action on the calendar for trial.

The first and second grounds of appeal are interrelated and are addressed to the action of the trial judge in reopening the judgment of dismissal. We must remind counsel of our positive inability to determine the legal or factual propriety of a ruling or interlocutory order or, indeed, of a summary or final judgment in the absence in the record or agreed statement in lieu thereof of the basic and essential information upon which the decision sought to be reviewed was rendered.

The order of the court which is exhibited in the appellant's appendix recites "that the above entitled cause be restored to the calendar for good cause shown * * *" The notice of the motion similarly placed before us indicated that the application was to be made "on the grounds that the defendant failed to carry out his agreement." No information has been authentically supplied to impart to us ...


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