Clapp, Jayne and Francis.
[35 NJSuper Page 199] Ensuing the outcome of the trial of this action on December 4, 1952 a final judgment was entered in the Superior Court, Law Division, on December 13, 1952
in favor of the plaintiff and against each of the defendants, Saddle River Farms, Inc., and David G. Lubben, in the sum of $17,114.47. Five months later, on May 28, 1953, substituted counsel for the defendant Lubben filed a notice of an application to be made on June 5, 1953 pursuant to R.R. 4:62-2 for an order vacating the judgment against the defendant Lubben. The application was denied by the trial judge and his disposition thereof was affirmed. 30 N.J. Super. 148 (App. Div. 1954).
The cited decision of this Division was rendered on March 23, 1954. Undoubtedly in consequence of certain observations which Judge Jayne expressed in the form of a query in the opinion, a notice of a motion was filed on June 2, 1954 on behalf of the defendant Lubben to vacate the judgment against him as void. R.R. 4:62-2(d). This motion was also denied by the trial judge by an order entered December 16, 1954, from which the defendant Lubben now appeals.
Judge Jayne stated that he observed beyond the boundaries of the appeal that the plaintiff prosecuted the action to recover from the defendant Lubben the reasonable value of the labor performed and materials furnished by it pursuant to a bargain made by him and to recover the indebtedness from the corporation as his undisclosed principal.
The alleged status of the corporate defendant as the undisclosed principal of the defendant Lubben does not seem to have been contested at the trial, for at the conclusion of the plaintiff's evidence a judgment was granted without objection in favor of the plaintiff against the corporation. Thereupon the trial, without objection on behalf of the defendant Lubben, continued to determine the liability of Lubben, and the jury rendered a verdict in favor of the plaintiff in like amount and for the same debt against Lubben. As previously stated, a single final judgment was entered against both defendants.
"This sequence of events agitated in my mind the question whether the plaintiff in taking the judgment against the corporation had not elected to hold the undisclosed principal responsible for the indebtedness and by that judgment conclusively established that in the transaction
the relationship of debtor and creditor existed under the contractual engagement between the corporation and the plaintiff.
My espionage of the course of the proceedings at the trial of the present action has motivated me to make the foregoing comments and suggest the questions that have occurred to me, with the frank acknowledgment that they are distinctly unrelated to the subject of the instant appeal. The introduction of a query (quaere) in judicial decisions was not formerly unfashionable."
From the questions so suggested the basis of the motion under review is derived. Obviously the grounds of the motion have been very tardily asserted, but we recognize that the present application was made under subdivision (d) of R.R. 4:62-2, formerly 3:60-2. Vide, Shammas v. Shammas , 9 N.J. 321, 327 (1952).
Confining ourselves to the acknowledged background of the nature of the complaint and subsequent occurrences at the trial, the present appeal seems to solicit our determination (1) whether the judgment against the defendant Lubben in such circumstances is void as a matter of law, or (2) whether it is merely voidable at the discretion of the court, or (3) whether the impropriety, if any, in the judgment against the agent Lubben is such that it has been waived by the failure of this defendant to ...