Alfred W. Booth & Bro. v. Glasser

Supreme Court of New Jersey

Alfred W. Booth & Bro. v. Glasser

99 A. 933, 90 N.J.L. 91, 5 Gummere 91, 1917 N.J. Sup. Ct. LEXIS 94

DecidedFebruary 16, 1917

StatusPublished

This text of 99 A. 933 (Alfred W. Booth & Bro. v. Glasser) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alfred W. Booth & Bro. v. Glasser, 99 A. 933, 90 N.J.L. 91, 5 Gummere 91, 1917 N.J. Sup. Ct. LEXIS 94 (N.J. 1917).

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Opinion

The opinion of the court was delivered by

Bergen, J.

The appellant filed a mechanics’ lien claim in the office of the clerk of the county of Hudson and brought its suit to enforce it in the District Court of the city of Bayonne.

The defendant moved to dismiss the action for two reasons ■—first, “'that the return day does not appear on the summons s'erved;” second, “more than fifteen daj^s has intervened between the date of the summons and the return day.” The trial court granted the motion and entered a judgment dismissing the suit from which the plaintiff has appealed to this court. ¿The question to he determined is whether section 23 of “An act to secure to mechanics and others payment for their labor and materials in erecting any building (Revision of 1898),” as amended in 1912 (Pamph. L., p. 470), authorizes a summons without naming a return day in actions brought in a District Court for the enforcement of a debt for which a lien is given for labor or materials furnished in erecting a building. This statute enacts, among other things, that “when the suit is brought in a District Court the practice shall be as nearly as possible the same as now provided, or may be hereafter provided, by law, in District Courts in actions on contract.” The act further provides that all suits shall he commenced hv summons similar in form to that set out in the statute, which in express terms provides a foi'vn for use either in the Circuit or District Court, “as the case may he,” and differs from the form required in actions on contract in the District Court, in that no> return day is required, but defendant is to answer within twenty days after service of the summons with complaint annexed. The defendant argues that the amendment was not intended to change the District Court act, which provides that a summons “shall specify a certain time not less than five nor more than 'fifteen days from the date of such process.” This contention is clearly'unsound in law.

[93]*93Tlie only statute which confers on District Courts jurisdiction to entertain a suit to enforce a mechanics’ lien, is that to be found in section 23 above mentioned, and that section, while declaring that the practice in District Courts in such eases shall be as nearly as possible the same as that provided for actions on contract in that court, further enacts that the summons shall he in form that is expressly set out in the act, and where a statute confers jurisdiction, and at the same time prescribes the form of summons to be used in enforcing claims under that jurisdiction, the entire act must be accepted as to the manner in which such jurisdiction shall he exercised. The ordinary action on contract differs from a suit to enforce a statutory lien, and the legislature in conferring jurisdiction has the right to prescribe the method in which it shall be exorcised, and it lias done so in tills case. The summons used in this case conformed to the express, terms of the statute conferring jurisdiction, and it was error to dismiss the suit for tire reasons upon which such judgment was based.

The judgment appealed from will be reversed.

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The opinion of the court was delivered by

Bergen, J.

The appellant filed a mechanics’ lien claim in the office of the clerk of the county of Hudson and brought its suit to enforce it in the District Court of the city of Bayonne.

The defendant moved to dismiss the action for two reasons ■—first, “'that the return day does not appear on the summons s'erved;” second, “more than fifteen daj^s has intervened between the date of the summons and the return day.” The trial court granted the motion and entered a judgment dismissing the suit from which the plaintiff has appealed to this court. ¿The question to he determined is whether section 23 of “An act to secure to mechanics and others payment for their labor and materials in erecting any building (Revision of 1898),” as amended in 1912 (Pamph. L., p. 470), authorizes a summons without naming a return day in actions brought in a District Court for the enforcement of a debt for which a lien is given for labor or materials furnished in erecting a building. This statute enacts, among other things, that “when the suit is brought in a District Court the practice shall be as nearly as possible the same as now provided, or may be hereafter provided, by law, in District Courts in actions on contract.” The act further provides that all suits shall he commenced hv summons similar in form to that set out in the statute, which in express terms provides a foi'vn for use either in the Circuit or District Court, “as the case may he,” and differs from the form required in actions on contract in the District Court, in that no> return day is required, but defendant is to answer within twenty days after service of the summons with complaint annexed. The defendant argues that the amendment was not intended to change the District Court act, which provides that a summons “shall specify a certain time not less than five nor more than 'fifteen days from the date of such process.” This contention is clearly'unsound in law.

[93]*93Tlie only statute which confers on District Courts jurisdiction to entertain a suit to enforce a mechanics’ lien, is that to be found in section 23 above mentioned, and that section, while declaring that the practice in District Courts in such eases shall be as nearly as possible the same as that provided for actions on contract in that court, further enacts that the summons shall he in form that is expressly set out in the act, and where a statute confers jurisdiction, and at the same time prescribes the form of summons to be used in enforcing claims under that jurisdiction, the entire act must be accepted as to the manner in which such jurisdiction shall he exercised. The ordinary action on contract differs from a suit to enforce a statutory lien, and the legislature in conferring jurisdiction has the right to prescribe the method in which it shall be exorcised, and it lias done so in tills case. The summons used in this case conformed to the express, terms of the statute conferring jurisdiction, and it was error to dismiss the suit for tire reasons upon which such judgment was based.

The judgment appealed from will be reversed.

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Bluebook (online)

99 A. 933, 90 N.J.L. 91, 5 Gummere 91, 1917 N.J. Sup. Ct. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfred-w-booth-bro-v-glasser-nj-1917.