Brink v. Blazer

Supreme Court of New Jersey

Brink v. Blazer

40 A. 623, 62 N.J.L. 175, 33 Vroom 175, 1898 N.J. Sup. Ct. LEXIS 64

DecidedJune 13, 1898

StatusPublished

This text of 40 A. 623 (Brink v. Blazer) 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

Brink v. Blazer, 40 A. 623, 62 N.J.L. 175, 33 Vroom 175, 1898 N.J. Sup. Ct. LEXIS 64 (N.J. 1898).

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Opinion

The opinion of the court was delivered by

Dixon, J.

The matters brought under review by this writ of certiorari are a judgment rendered February 1st, 1879, in a Court for the Trial of Small Causes, and the docketing of the judgment in the Warren County Court of Common Pleas, June 14th, 1897.

The reasons assigned for reversing the judgment are, first, that the constable’s return upon the summons does not state the year of service, and second, that the justice’s docket does not show the day to which, on return of the summons, the cause was adjourned.

The docket shows that the summons was issued January 18th, 1879, and was returned January 25th, 1879, and the constable’s return alleges service January 20th. Necessarily that must have been January 20th, 1879.

The docket alleges adjournment to February 1st, adding “ at which time plaintiff appeared ” and the trial was held. All this is entered in the docket under the year date “ 1879.” The adjournment must therefore have been to February 1st, 1879.

No sufficient reason is assigned for the reversal of the judgment.

Of the objections made to the docketing of the judgment in the Common Pleas, only one need be noticed.

The docketing was attempted under the supplement to the Justice’s Court act, approved March 9th, 1891 (Gen. Stat., p. 1896), which enacts that (with some irrelevant exceptions) the proceedings shall be in accordance with the seventy-second section of said act. One of the clauses of that section requires, as a preliminary to the docketing, that ihere be filed with the clerk of the Common Pleas an oath of the plaintiff [177]*177or his agent that “ he believes the debtor is not possessed of goods and chattels sufficient to satisfy the amount due.” In the attempt to docket this judgment such an oath was not filed. For this defect the docketing is void (Tasto v. Klopping, 14 Vroom 448), unless the act of April 4th, 1892 (Gen. Stat., p. 1898), has dispensed with such an oath. Without considering whether this statute has such effect in any case, we think its words confine its operation to the docketing of judgments where there is filed with the clerk of the Common Pleas a statement of the judgment, signed and sealed by the justice before whom it was rendered, and cannot be extended to cases like the present, in which the docketing rests upon a transcript made by the county clerk.

The docketing of the judgment must be set aside.

The plaintiff in certiorari may have judgment for costs, not including, however, the expense of taking and printing the testimony.

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The opinion of the court was delivered by

Dixon, J.

The matters brought under review by this writ of certiorari are a judgment rendered February 1st, 1879, in a Court for the Trial of Small Causes, and the docketing of the judgment in the Warren County Court of Common Pleas, June 14th, 1897.

The reasons assigned for reversing the judgment are, first, that the constable’s return upon the summons does not state the year of service, and second, that the justice’s docket does not show the day to which, on return of the summons, the cause was adjourned.

The docket shows that the summons was issued January 18th, 1879, and was returned January 25th, 1879, and the constable’s return alleges service January 20th. Necessarily that must have been January 20th, 1879.

The docket alleges adjournment to February 1st, adding “ at which time plaintiff appeared ” and the trial was held. All this is entered in the docket under the year date “ 1879.” The adjournment must therefore have been to February 1st, 1879.

No sufficient reason is assigned for the reversal of the judgment.

Of the objections made to the docketing of the judgment in the Common Pleas, only one need be noticed.

The docketing was attempted under the supplement to the Justice’s Court act, approved March 9th, 1891 (Gen. Stat., p. 1896), which enacts that (with some irrelevant exceptions) the proceedings shall be in accordance with the seventy-second section of said act. One of the clauses of that section requires, as a preliminary to the docketing, that ihere be filed with the clerk of the Common Pleas an oath of the plaintiff [177]*177or his agent that “ he believes the debtor is not possessed of goods and chattels sufficient to satisfy the amount due.” In the attempt to docket this judgment such an oath was not filed. For this defect the docketing is void (Tasto v. Klopping, 14 Vroom 448), unless the act of April 4th, 1892 (Gen. Stat., p. 1898), has dispensed with such an oath. Without considering whether this statute has such effect in any case, we think its words confine its operation to the docketing of judgments where there is filed with the clerk of the Common Pleas a statement of the judgment, signed and sealed by the justice before whom it was rendered, and cannot be extended to cases like the present, in which the docketing rests upon a transcript made by the county clerk.

The docketing of the judgment must be set aside.

The plaintiff in certiorari may have judgment for costs, not including, however, the expense of taking and printing the testimony.

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Bluebook (online)

40 A. 623, 62 N.J.L. 175, 33 Vroom 175, 1898 N.J. Sup. Ct. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brink-v-blazer-nj-1898.