On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. F-17892-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
Defendant Brooke Murphy appeals from a default judgment of foreclosure entered in favor of plaintiff, arguing, among other things, that he was not served by plaintiff with a notice of intention to foreclose, as required by N.J.S.A. 2A:50-56(a), and that he was not served with the summons and complaint. Because defendant never pursued these arguments in the trial court, the appeal will be dismissed.
The record reveals the following salient facts. On October 10, 2006, plaintiff filed a complaint seeking to foreclose its mortgage on property owned by defendant Murphy. The complaint named as defendants not only Murphy and other lien holders, but also Mary Clare Monahan, who was alleged to hold a second mortgage on the property.
A default judgment was entered in favor of plaintiff on July 30, 2007. On October 3, 2007, Murphy filed a notice of appeal seeking our review of the default judgment.
It appears that Murphy also filed a motion in the trial court seeking discovery at some point after the entry of judgment. Because a copy of that motion was not included in his appendix, we cannot ascertain when it was filed, but we do know, in light of an order entered on December 17, 2007 which denied that discovery motion that the trial judge's ruling occurred after the filing of the notice of appeal; accordingly, the trial judge correctly recognized, as the handwritten note on the December 17, 2007 order indicates, that Rule 2:9-1(a) deprived the trial court of jurisdiction to rule on the merits of Murphy's discovery motion. As a result, all that is before us*fn1 is Murphy's appeal of a default judgment.
We recognized in Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992), that "a direct appeal will not lie from a judgment by default." See also McDermott v. Paterson, 122 N.J.L. 81, 84 (E. & A. 1939); Walter v. Keuthe, 98 N.J.L. 823, 827 (E. & A. 1923); Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); In re Estate of Siegel, 214 N.J. Super. 586, 591 (App. Div. 1987). The rule has ancient origins. See Townsend v. Smith, 12 N.J. Eq. 350, 353 (E. & A. 1858).
As explained in McDermott, the reason underlying this rule "is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration. . . ." 122 N.J.L. at 84. As a result, if Murphy has a remedy, it lies with Rule 4:50-1. Haber, supra, 253 N.J. Super. at 416. The record on appeal demonstrates that Murphy has not yet pursued that avenue of relief.
In accordance with the approach we outlined in Haber, defendant's appeal will be dismissed without prejudice and with leave to file an application for relief pursuant to Rule 4:50-1. 253 N.J. Super. at 417. And, as we also said in Haber, "[w]e take no position as to whether such a motion is timely or whether, if timely, any relief from the judgment should be granted."
Appeal dismissed without prejudice. We do not ...