On appeal from the Superior Court, Law Division, Morris County.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
[23 NJ Page 468] This is an appeal from an order of the Superior Court, Law Division, entered on a complaint and order to show cause issued by it quashing a writ of execution issued on an order entered in the Superior Court, Chancery Division, in a matrimonial matter, M-496-55.
An order entered on February 3, 1956 in the matrimonial cause fixed the amount of arrearages due on an order for alimony and support pendente lite in the sum of $965.60. This order was entered upon the civil docket and since it was an order for the payment of money it had the force, operation and effect of a judgment of the Superior Court, Law Division, an "execution may issue thereon as in other cases," N.J.S. 2 A:16-18, subject to the provisions of N.J.S. 2 A:16-19. An abstract of this judgment was subsequently entered on the Civil Judgment and Order Docket of the Superior Court pursuant to N.J.S. 2 A:16-19, and the judgment became a lien and bound the real estate of the defendant as against persons not a party to the suit.
A writ of execution was issued and a levy made on this docketed judgment on June 21, 1956. On June 27, 1956 a levy was made under an execution issued out of the Morris County Court on a subsequent judgment entered in that court on March 9, 1956, in favor of the respondent and against one George Van Loan for goods sold and delivered. It is patent that the levy made under the execution issued on order of the Superior Court, Chancery Division, was prior in time and levy to the County Court judgment.
Both levies were made on property owned by Adele Van Loan and George Van Loan as tenants by the entirety. At the time the levies were made no judgment nisi in the divorce proceeding had been entered nor has one been entered as of this date. Therefore the levy could only be made against such right, title and interest as George Van Loan had as a tenant by the entirety.
We discern no reason why the application to set aside the writ of execution issued on the order of the Superior Court, Chancery Division, in the matrimonial proceeding was not made by counsel in that proceeding because it is fundamental that a court controls the enforcement of its own judgments. While it is true that the Law Division and Chancery Division are part of the one court, it is most unseemly to have a proceeding of the Law Division reviewing
and disturbing the orderly progress of an action in the Chancery Division.
The county judge who sat by special assignment on the return of the order to show cause quashed the writ of execution on the ground that R.R. 4:74-1 specifically states that a writ of execution is the proper process to enforce a judgment or order "for the payment of money, other than alimony or maintenance awarded in a matrimonial action." The effect of this conclusion is to say that an order or judgment of the Chancery Division fixing the amount of money due for past due alimony or support cannot be enforced by execution.
The words "alimony" and "maintenance" have always had a technical signification in our law and are regarded as annuities a futuro. O'Loughlin v. O'Loughlin, 12 N.J. 222, 229 (1953). Thus, alimony and maintenance decrees, judgments or orders do not, of course, resemble judgments at law in the pecuniary obligations they impose at the time of their pronouncement, but they can take on that form as the alimony from time to time accrues. Close v. Close, 28 N.J. Eq. 472 (E. & A. 1877); Warren v. Warren, 92 N.J. Eq. 334, 336 (Ch. 1921). Any lien that attaches to the lands of a defendant does so solely by virtue of a statute.
At the common law, except for debts due to the King, no lien was acquired by a judgment. The judgment lien is purely a creature of the statute. 2 Freeman on Judgments (5 th ed.), sec. 916. This is particularly true of judgments on decrees in equity, for an equitable proceeding originally was purely a personal proceeding and the decree was in personam. It abated by the death of the individual charged and it did not affect his property further than by enabling the party claiming the benefit of it to come in, pari passu, with other creditors against a personal estate. It could not be revived against his heir unless the real estate was the subject of the ...