Identical motions by plaintiff in both the above-entitled matters seeking permission for an officer of the court to enter defendants' residences for the purpose of effecting an inventory of their personal property therein and levying upon same came on before the court on January 21, 1977.
Spiegel, Inc. v. Shirley A. Taylor is a collection action on a book account for goods and/or services sold and delivered, in which a default judgment was entered against defendant on August 24, 1976 for $329.55 plus costs, defendant having failed to answer the complaint.
Spiegel, Inc. v. Sam Henderson and Bonnie J. Henderson , his wife, is also a collection action on a book account for goods and/or services sold and delivered, in which a default judgment was entered against defendants on September 17, 1974 for $332.68 plus costs, defendants having failed to answer the complaint. It appears that some payments have been made, leaving a balance due, as of a letter from plaintiff's attorney dated July 10, 1975, in the sum of $182.68 plus costs.
Each motion was supported by an affidavit from the constable that he has "made attempts to levy on the personal property of the defendants and have met with no success." Although no one appeared in opposition to either motion, the court requested plaintiff's attorney to submit authority for the request.
Plaintiff cites the case of Nelson v. VanGazelle Valve Mfg. Co. , 45 N.J. Eq. 594 (Ch. 1889), and relies upon the court's statement (at 595) that the constable, in making the levy in question, "was warranted in law in breaking into the factory and making an actual seizure and adequate inventory * * *." The case held that where the constable attempted to make a levy upon chattels in a factory by looking through a window and getting a partial view, from which he
made an incomplete inventory without gaining access to the building, the purported levy was invalid. This decision is distinguishable from the present case because it involved commercial premises and not defendant's dwelling house. Furthermore, the statement relied upon is dictum , nor is a decision of a trial court in another time era binding on this court.
Plaintiff also cites N.J.S.A. 2A:99-1, entitled "Obstructing execution of process; assaulting officers." This statute makes it a misdemeanor to obstruct or resist an officer, including a constable, in serving or executing any writ or other process. There is no indication in these cases of obstruction by defendants. The constable simply states that he has been unable to levy on any personal property. The statute is inapplicable and is no authority for the relief requested.
Finally, plaintiff submits a similar order entered by another judge of this court last year at the request of a different law firm in an unrelated case. This court does not know the circumstances under which that order was entered and, in any event, it is not binding precedent.
In short, the authority submitted by plaintiff is ...